Michigan Law Review

Volume 78 Issue 8

1980

Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933

David W. Levy University of Oklahoma

Bruce Allen Murphy Pennsylvania State University

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Recommended Citation David W. Levy & Bruce A. Murphy, Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter, 1916-1933, 78 MICH. L. REV. 1252 (1980). Available at: https://repository.law.umich.edu/mlr/vol78/iss8/3

This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. PRESERVING THE PROGRESSIVE SPIRIT IN A CONSERVATIVE TIME: THE JOINT REFORM EFFORTS OF JUSTICE BRANDEIS AND PROFESSOR FRANKFURTER, 1916-1933

.David W. Levy* and Bruce Affen Muphy**

On January 28, 1916, President Wilson sent the name of Louis D. Brandeis to the Senate for confirmation as a Justice of the United States Supreme Court. Wilson's act surprised many Americans and sparked one of the bitterest confirmation struggles in the history of the Republic. The nomination and the confirmation that followed also created a painful and highly personal dilemma for the new Jus­ tice. This dilemma led Brandeis to a private arrangement that opened an unusual and revealing chapter in the story of the extraju­ dicial activities of American justices. Even more important, the ar­ rangement constitutes a noteworthy episode in the history of twentieth-century American liberalism. 1

I For twenty years before his nomination, Brandeis had been a res­ olute and effective champion of social reform. In an era notable for its reformers, Brandeis had earned an impressive reputation among those who worked for change: nemesis of the traction magnates, re­ lentless foe of monopoly, defender of conservation against the depre­ dations of Ballinger and Taft, inventor of low-cost workingmen's insurance, chief prophet of industrial democracy, champion of pro­ gressive legislation in the courts, the "people's attorney" in their struggles against powerful interests. By 1916, Mr. Wilson's choice

* Associate Professor, Department of History, University of Oklahoma. B.A. 1959, Uni­ versity of Illinois; M.A. 1961, University of Chicago; Ph.D. 1967, University of Wisconsin. - Ed. ** Assistant Professor, Department of Political Science, Pennsylvania State University. B.A. 1973, University of Massachusetts-Amherst; Ph.D. 1978, University of Virginia. - Ed. 1. Many of the letters cited in this article have been reprinted in 1-V LETTERS OF Louis D. BRANDEIS (M. Urofsky and D. Levy eds. 1971-1978) [hereinafter cited as LETTERS), In this article, each citation to such a letter includes a reference to the location within that collection of the reprinted letter; the collection provides a reference to the location of the original letter. Unless otherwise indicated, all letters cited in this article were authored by Louis D. Bran­ deis [hereinafter L.D.B.J.

1252 . August 1980] Brandeis and Franifurter 1253

for the High Court had become the very symbol of social activism.2 Opponents seized upon that activist reputation in their effort to prevent confirmation. Brandeis, they charged, lacked the judicial temperament; he had none of that cool and level-headed judgment which should characterize a nonpartisan dispenser of justice. Sena­ tor John D. Works, who voted against confirmation, summed up the contention: "He is of the material that makes good advocates, re­ formers, and crusaders, but not good or safe judges."3 Even Bran­ deis's supporters tended to agree with the charge. "He is a radical and has spent a large part, not only of his public, but of his profes­ sional career, in attacking established institutions . . .," admitted one friend. "Undoubtedly he is a merciless antagonist, fighting his cases up to the limit ...." 4 Another supporter tried to convince the Senators that "[a] man can not be combative as he is, or aggressive as he is, fighting as he has been on the firing line during all his profes­ sional career, without making many enemies."5 Brandeis recognized that becoming a judge would ordinarily re­ quire leaving partisan interests and attitudes behind. In the sancti­ fied tradition of the law - which Brandeis revered as much as anyone6 - a judge was characterized by impartiality, by distance from the battle, by living a life aloof from the fray. Amos Pinchot, Brandeis's trusted comrade-in-arms in several progressive crusades, saw the problem as clearly as Brandeis. On the day after Chief Jus­ tice White administered the oath to Brandeis, Pinchot confessed that "although I have done what I could in the fight for your confirma­ tion and earnestly desired it - still, now that you are actually a Supreme Court Justice, I don't know whether to be sorry or glad. So far, I think that I am sort of sorry." Perhaps the new Justice might "escape the common fate of judges," but Pinchot was far from opti­ mistic: Taking it all together, I don't think it is unfair to say that, for the last ten years, you have been the most vital and disturbing element in our public life . . . . You have made more trouble for injustice than any other man. The passing of your work, both light cavalry and heavy artillery, the knowledge that no longer, when a cause needs a great

2. See A. LIEF, BRANDEIS: THE PERSONAL HISTORY OF AN AMERICAN IDEAL (1936); A. MASON, BRANDEIS: A FREE MAN'S LIFE (1946); M. UROFSKY, A MIND OF ONE PIECE (1971). See generally, A. GAL, BRANDEIS OF BOSTON 1-65, 96-136 (1980). 3. II Nomination of Louis D. Brandeis: Hearings Before the Subcommillee of the Senate Commillee on the Judiciary, 64th Cong., 1st Sess. 371 (1916). 4. I id at 620 Qetter written by Arthur D. Hill). 5. Id at 770 (statement of Asa P. French). 6. See M. UROFSKY, supra note 2, at 15-42; Levy, 17ze Lawyer as Judge: Brandeis' View of the Legal Profession, 22 OKLA. L. Rev. 374 (1969). 1254 Michigan Law Review [Vol. 78:1252

militant advocate, you will step forward as you have heretofore to fight the exploiters and debauchers of America's men, women and children, makes me feel pretty sad. As long as you were in private life, it. seemed to me that, if any monstrous injustice should be attempted upon help­ less people, they would not lack protection. You furnished to me per­ sonally, and to many people who are making the rather lonely fight against privilege, a kind of confidence that we will sorely miss.7 When the San Francisco reformer, Rudolph Spreckels, sounded the same note as Pinchot, Brandeis replied: "I have felt strongly what your telegram also indicates, - how much one must relinquish in order to avail of new opportunity."8 Brandeis received his first taste of standing aloof from the fray during the confirmation hearings. On the day of the nomination he told reporters, "I have nothing whatever to say; I have not said any­ thing and will not."9 A few days later he asked Henry Brougham of the Philadelphia Public Ledger to refrain from rewriting and publish­ ing his testimony before a Congressional committee because "it would amount practically to an interview, and I am avoiding inter­ views of all kinds at present." 10 At the start of the long confirmation ordeal, administration strategists decided that the nominee should neither testify, nor publicly answer any of the charges against him. So Brandeis reluctantly returned to Boston and tried to content him­ self by digging information out of his files and channeling it to those managing his side of the hearing in Washington. "I am leaving the fight to others," he wrote his brother two weeks into the proceedings. "Now my feeling is rather - 'Go it husband, Go it bear' with myself as 'interested spectator.' " 11 The role of "interested spectator," however, was one with which Brandeis had little experience and, as it turned out, little patience. He chafed at being kept out of the fight. After nearly six weeks of reading the accusations of his enemies in the newspapers, he ex­ ploded: It looks to me as if the Committee were beginning either to perpetrate an outrage or to make themselves and me ridiculous by these contin­ ued hearings.

7. Letter from Amos R.E. Pinchot to L.D.B. (June 6, 1916), reprinted in IV LETTERS, supra note 1, at 239 n.l. 8. Letter to Rudolph Spreckels (Feb. 10, 1916), reprinted in IV LETTERS, supra note 1, at 42. 9. A. MAsoN, supra note 2, at 465. For an account of the confirmation hearings see A. TODD, JUSTICE ON TRIAL: THE CASE OF LOUIS D. BRANDEIS (1964). 10. Letter to l:Ienry B. Brougham (Feb. 8, 1916), reprinted in IV LETTERS, supra note I, al 35. 11. Letter to Alfred Brandeis (Feb. 12, 1916), reprinted in IV LETTERS, supra note I, at 54. August 1980] Brandeis and Frankfurter 1255

. . . I have accepted the opinion that it would be unwise for me to go down to Washington and appear, but if the proceedings continue on the lines which have been taken, making it appear that we are defend­ ing ourselves or excusing our conduct, I think I would rather go down and testify. 12 Edward McClennen, Brandeis's law partner and his chief spokesman at the hearings, shot back a calming letter. "Do not let the long con­ tinuance of this wear upon you," he soothed the restive nominee. "Do not let anything permit you to harbor the thought for a moment of responding to any suggestion that you testify." 13 In the end, only the constant reassurance and adamant insistence of his friends kept Brandeis from flinging off the unfamiliar role of "interested specta­ tor" and plunging into the accustomed one of "merciless antago­ nist." If the confirmation hearings failed to convince Brandeis that his new position would require serious modification of his customary style, the lesson was driven home by two events during the following summer. Brandeis took the oath of office on June 5, and spent the next few weeks wrapping up affairs in Boston, disengaging himself from the many causes and associations that had occupied his life for so many years. He harbored the hope, however, that he might con­ tinue to lead the American Zionist movement, a crusade that had commanded his energies since he assumed the presidency of the Pro­ visional Executive Committee for Zionist Affairs in August, 1914. By tireless attention to detail and by applying the same techniques he had so successfully employed in his previous reform efforts, Bran­ deis had helped transform the Zionist movement from an ineffective debating society into a powerful and aggressive instrument - effi­ cient, unified, influential. 14 And, as in earlier crusades, Brandeis had not avoided controversy. He had led the Zionists into a quarrel in­ volving the proposed formation of an American Jewish Congress, a democratically elected body that would meet to discuss the major issues confronting the Jewish people. Wealthier American Jews, and their spokesmen in the effective and prestigious American Jewish Committee, bitterly opposed the Congress. By 1916, Brandeis and the Zionists had practically won the victory. Despite the resentment

12. Letter to Edward F. McClennen (Mar. 9, 1916), reprinted in IV LETTERS, supra note 1, at 113-14. 13. Letter from Edward F. McClennen to L.D.B. (Mar. 10, 1916), reprinted in IV LETTERS, supra note 1, at 114-15 n.4. 14. See generally J. DEHAAS, LOUIS D. BRANDEIS 51-97 (1929); Y. SHAPIRO, LEADERSHIP OF THE AMERICAN ZIONIST ORGANIZATION 1897-1930 at 53-134 (1971); M. UROFSKY, AMERI­ CJ\N ZIONISM FROM HERZL TO THE HOLOCAUST 117-298 (1975). 1256 Michigan Law Review [Vol. 78:1252 and opposition of the "Jewish aristocracy," the Congress was poised at the point of embarking upon its duties. 15 The American Jewish Committee invited Brandeis and· others to a "conference'; on July 16 at the Hotel Astor. The ostensible pur­ pose of the gathering was to permit representatives of the Congress movement to appeal for unity within the Jewish Congress, to urge the holdouts to join the movement, and to assure them of a hearty welcome in the name of American Jewish solidarity. After Brandeis and the others spoke, they offered to withdraw to allow the assem­ bled representatives to debate the proposal. But before they could leave, cries from the audience and a request from the chairman, Louis Marshall, persuaded them to stay. Members of the audience then unleashed a violent torrent of personal attacks upon the new Justice of the Supreme Court. The incident, which bore the marks of a premeditated ambush, was followed by a harsh editorial criticizing Brandeis in the New York Times. 16 The episode proved extremely embarrassing for a man who had been on the Supreme Court for only six weeks and, Brandeis feared, embarrassing for the Court it­ self. Within a few days he resigned his official positions in the Zion­ ist movement.17 The second event of the summer of 1916 that illustrated Bran­ deis's loss of freedom to act entirely of his own volition occurred only three weeks after the Hotel Astor ambush. President Wilson asked him to serve on the Mexican Arbitration Commission on bor­ der disputes; and the names of the appointees were released to the press. Before accepting, however, Brandeis thought it advisable to consult with Chief Justice White, and he hurried to Lake Placid for that purpose. White pressed Brandeis to decline the appointment and to concentrate entirely on judicial work because of the heavy load which the Court was facing in its upcoming term. Brandeis re­ luctantly told Wilson that he could not accept the new responsibil­ ity. is

15. Y. SHAPIRO, supra note 14, at 80-86; M. UROFSKY, supra note 14, at 171-88; Rischin, The American Jewish Committee and Zionism 1906-1922, in 5 HERZL YEARBOOK 65, 68-71 (1963); A. Roth, Backgrounds and Origins of' the American Jewish Congress (1953) (unpub­ lished rabbinic thesis, located at Hebrew Union College Library, Cincinnati, Ohio). 16. See N.Y. Times, July 18, 1916, at 8, col. 2; Y. SHAPIRO, supra note 14, at 94-96. The newspaper was owned and operated by Jews within the circle of the American Jewish Com­ mittee. 11. See Letter to Hugo Pam (July 21, 1916), reprinted in IV LETTERS, supra note I, at 250- 51. L.D.B. also resigned from his offices in several Jewish relief organizations. See IV LET· TERS, supra note 1, at 252-53 n.1. 18. See N.Y. Times, Aug. 5, 1916 at I, col. 4; Aug. 9, 1916, at 11, col. 3; Aug. 10, 1916, at 8, cols. 3, 4 and at 10, col. I; Aug. 13, 1916, at 6, col. 4; Letter to Franklin K. Lane (Aug. 9, 1916), reprinted i~LETTERS, supra note 1, at 254; Letter to Chief Justice Edward D. White (Aug. August 1980] Brandeis and Frankfurter 1257

And so it was that Brandeis entered upon his first term on the Court in October, 1916, trapped in a most uncomfortable situation. He possessed the temperament of a political activist; but his new cir­ cumstances - as the hearings, the Hotel Astor incident, and the Mexican Commission episode clearly indicated - prohibited activ­ ism. Those who knew Brandeis's reform career best, however, recog­ nized his great talent for improvising new and untried mechanisms to solve seemingly insoluble problems. He had done it in the Boston gas fight (establishing the "sliding scale" which tied increasing cor­ porate dividends to lower gas prices for consumers); he had done it in the fight against the insurance companies (inventing low-cost workingmen's insurance to be sold through Massachusetts Savings Banks); he had done it in the gigantic garment workers' strike of 1910 (introducing an industry-wide Board of Arbitration and the concept of the "preferred union shop" as an alternative to the open or closed shop). In the present, most personal case, Brandeis succeeded in impro­ vising yet another "mechanism." Although it did not entirely free him of his private dilemma, it at least enabled him to live the life of a judge and, at the same time, to wield a continuing and important political influence in the affairs of the nation. This newest mecha­ nism - which worked with amazing effectiveness, but which raises some troubling and important questions for students of American judicial behavior - was a Harvard law professor named Felix Frankfurter.

II In 1905, when Frankfurter was still a law student at Harvard, Brandeis came to Cambridge to deliver his address, "The Opportu­ nity in the Law." Frankfurter sat in the audience and listened as the Boston reformer argued that legal training enormously .enhanced one's opportunities to be useful in a democracy. Those lawyers who could resist the allure of the corporations and take up the struggle on behalf of the people, Brandeis said, would find unique opportunities to perform extraordinary services for the nation. Whether or not the speech actually influenced Frankfurter, it cer­ tainly addressed a question that had plagued him. The debate over whether to enter private practice or public service raged in him for a long while. He accepted a position in a New York law firm when he

9, 1916), reprinted in IV LETTERS, supra note l, at 255; Letter to President Woodrow Wilson (Aug. 14, 1916), reprinted in IV LE'ITERS, supra note 1, at 255. 1258 Michigan Law Review [Vol. 78:1252 graduated in 1906, but after a few weeks he took a substantial cut in salary to go to work for Henry L. Stimson as Assistant United States Attorney for the Southern District of New York. Three years later, Frankfurter followed Stimson back into private practice for a brief time, served as his administrative assistant while Stimson lost the New York gubernatorial contest in 1910, and came to Washington with him in the spring of 1911, when Taft appointed him Secretary of War. Frankfurter stayed in Washington until he joined the Harvard Law School faculty in September, 1914. 19 Frankfurter was driven by relentless energy, a capacity for un­ ending work, and a :flashing, incisive intelligence. His special trait, however, was his wonderful ability to cultivate friends. Oliver Wen­ dell Holmes, Jr. once remarked that Frankfurter had "walked deep into my heart"20 - but dozens of others could have expressed the same sentiment. He had "a green thumb for friendships," John Ma­ son Brown once wrote: "His is a dancing spirit, possessed of that supercharge of zest which generates gaiety in others."21 Few could resist his charm, his lively and endless talk, his capacity for intimacy. "As soon as he bounces in - he never walks, he bounces - the talk and the laughter begin," Matthew Josephson observed, "and they never let up."22 In Washington, Frankfurter lived with a group of other bachelors in a house on Nineteenth Street. All of them bright, young, and dedicated to public service, their house became "a center of liveli­ ness." "The parties ran continuously," Frankfurter remembered. "How or why I can't recapture, but almost everybody who was inter­ esting in Washington sooner or later passed through that house. The magnet of the house was exciting talk, and it was exciting because talk was free and provocative, intellectually provocative."23 Holmes called the place "The House of Truth," and the name stuck.24 It was there that Brandeis and Frankfurter first became acquainted. The Boston reformer made frequent trips to the Capitol after 1911 - to appear before the Interstate Commerce Commission on various rail­ road questions, to testify before Congressional committees, to lobby against the New Haven Railroad, to defend progressive legislation

19. See L. BAKER, FELIX FRANKFURTER 13-41 (1969); FELIX FRANKFURTER REMINISCES 17-76 (H. Phillips ed. 1960) [hereinafter cited as FRANKFURTER REMINISCES]. 20. J. BROWN, THROUGH THESE MEN 174 (1952). 21. Id 22. Josephson, Jurist], NEW YORKER, Nov. 30, 1940, 24, 25. 23. FRANKFURTER REMINISCES, supra note 19, at 106. 24. See id at 106-07. August 1980] Brandeis and Franlifurter 1259

before the Supreme Court, to consult with Robert LaFollette and other insurgent Senators and Representatives. During those visits Brandeis was a regular guest at the House of Truth. The mutual respect between the two men grew steadily. By No­ vember, 1911, Brandeis was soliciting suggestions from Frankfurter for amendments to the Sherman Antitrust Act; by April, 1912, Frankfurter was asking Brandeis to suggest appointees for the Chil­ dren's Bureau and the Industrial Commission.25 Their relationship, however, had not yet acquired the affectionate intimacy that would soon characterize it. Perhaps it was beneficial to their ultimate friendship that they did not know each other better in 1912-Bran­ deis's support of Wilson and Frankfurter's support of Roosevelt in the presidential election of that year might have driven a wedge be­ tween them had they been closer. With the election behind them, and Frankfurter sufficiently rec­ onciled to the new administration to remain in the War Department, the men enjoyed increasingly frequent contact. Brandeis grew confi­ dent of Frankfurter's progressive instincts: "If the War Department seems to be going wrong on water power questions," he wrote to his conservationist friend, Philip Wells, "I hope you will discuss them fully with Frankfurter. He is thoroughly with us on conservation, and is so intelligent that I consider him a power for the right."26 Brandeis was also impressed with Frankfurter's inside knowledge of Washington patronage; to one job-seeker in 1914, he wrote, ~•I pre­ sume you have written Felix Frankfurter, who has a faculty, rarely equalled, of hearing about 'possible opportunities' for men capable of doing good work." Soon Brandeis was referring to "the omnipres­ ent Felix," and writing about "our good friends at the House of Truth."27 When the Harvard Law School offered Frankfurter a professor­ ship, it was natural that he would seek advice from Brandeis. Most of his other advisers - Holmes, Stimson, Herbert Croly, Theodore Roosevelt - warned against abandoning a promising career in gov­ ernment for the cramped life of a college professor.28 But Brandeis,

25. See Letter to Felix Frankfurter [hereinafter F.F.] (Nov. 15, 1911), reprinted in II LET­ TERS, supra note 1, at 512; Letter to F.F. (Apr. 9, 1912), reprinted in II LETTERS, supra note 1, at 577-78. See also A. GAL, supra note 2, at 142-44. 26. Letter to Philip P. Wells (July 21, 1913), reprinted in III LETTERS, supra note 1, at 146. 27. Letter to Roger B. Hull (Jan. 31, 1914), reprinted in III LETTERS, supra note 1, at 242; Letter to Alice G. Brandeis (Jan. 21, 1914), reprinted in III LETTERS, supra note 1, at 236; Letter to Alfred Mitchell-Innes (Mar. 16, 1914), reprinted in III LETTERS, supra note 1, at 261- 62. 28. See L. BAKER, supra note 19, at 41-42; FRANKFURTER REMINISCES, supra note 19, at 77-80. 1260 Michigan Law Review [Vol. 78:1252 who had already approached Dean Roscoe Pound about the possi­ bility of hiring Frankfurter, urged him to accept the post. When Frankfurter expressed doubts about his qualifications, Brandeis sim­ ply answered that he should "let those who have the responsibilities for selecting you decide your qualifications."29 Frankfurter took the job and remained a Harvard professor from September 1, 1914 until Franklin Roosevelt appointed him to the Supreme Court in 1939. And with Frankfurter now living in Cambridge and Brandeis prac­ ticing law across the river in Boston, their encounters were even more frequent. Frankfurter's first extensive experience as one of Brandeis's lieu­ tenants was not long in coming. He had taken up his teaching duties only one day after Brandeis accepted the leadership of the American Zionist movement. Brandeis's effort to attract bright, young Jewish intellectuals was a hallmark of his Zionist leadership. He wanted men, he said, who were willing to study all aspects of the Jewish problem and who would persuasively speak and write for the crea­ tion of a Jewish homeland in Palestine.30 In March, 1915, Brandeis created an "Advisory Council" to serve as a brain trust for the move­ ment. The "council" initially consisted of Julian W. Mack and Frankfurter, with others to be appointed later.31 Thereafter Frank­ furter remained within the inner circle of advisers and movers in Brandeis's administration of American Zionism. Frankfurter per­ formed his duties with tact, diplomacy, and promptness; and he gave such sound advice that Brandeis came increasingly to rely on his judgment. Thus, when Brandeis embarked upon his duties on the Supreme Court in October, 1916, he knew his man well. He had grown to appreciate Frankfurter's lively good humor and vitality, to respect his high intelligence and steady good sense, to value his trustworthi­ ness and diplomatic skills, and to marvel at his endless array of friends. Brandeis had also satisfied him.self that Frankfurter's views on virtually all important political, social, economic and legal ques-

29. FRANKFURTER REMINISCES, supra note 19, at 17. 30. Letter to Richard J. H. Gottheil (Oct. 2, 1914), reprinted in III LETTERS, supra note l, at 309; Letter to Alex Kanter (Nov. 14, 1914), reprinted in III LETTERS, supra note I, at 357; Letter to Horace M. Kallen (Jan. 14, 1915), reprinted in III LETTERS, supra note I, at 405; Letter to Stephen S. Wise (Mar. 2, 1915), reprinted in Ill LETTERS, supra note l, at 454-55; Letter to Horace M. Kallen (Mar. 4, 1915), reprinted in III LETTERS, supra note I, at 459-60; Letter to Benjamin Perlstein (Mar. 12, 1915), reprinted in Ill LETTERS, supra note I, at 479-81; Letter to Bernard Flexner (Feb. 12, 1919), reprinted in IV LETTERS, supra note I, at 378-81; Letter to Julian W. Mack (July 20, 1930); reprinted in V LETTERS, supra note I, at 435-37. 31. See Letter to Julian W. Mack (Mar. 19, 1915), reprinted in Ill LETTERS, supra note I, at 487. Brandeis and Franifurter 1261 tions were likely to agree with his own. The two men had developed a warm intimacy built on shared values, opinions, and respect: by 1916, letters to Frankfurter began "Dear Felix," and the reserved Brandeis addressed very few men in the world by their first names. On November 14, 1916, the day after his sixtieth birthday, Brandeis responded warmly to a greeting from Frankfurter's mother: "Your son has won so large a place in our hearts and brought so much of joy and interest into our lives that we feel very near to you who are nearest to him."32 Five days later, in the week of Frankfurter's thirty-fourth birth­ day, and only one month into Brandeis's first term, the newest Jus­ tice wrote a fateful letter: My dear Felix: You have had considerable expense for travelling, telephoning and similar expenses in public matters undertaken at my request or following up my suggestions & will have more in the future no doubt. These expenses should, of course, be borne by me. I am sending check for $250 on this account. Let me know when it is exhausted or if it has already been.33 Frankfurter demurred and promptly returned the check; but on No­ vember 25, Brandeis and his wife sent it back, this time elaborating more fully on what he had in mind. My dear Felix: Alice and I talked over the matter before I sent the check and considered it again carefully on receipt of your letter. We are clearly of opinion that you ought to take the check. In essence this is nothing different than your taking travelling and incidental expenses from the Consumers League or the New Republic - which I trust you do. You are giving your very valuable time and that is quite enough. It can make no difference that the subject matter in connection with which expense is incurred is more definite in one case than in the other. I ought to feel free to make suggestions to you, although they in­ volve some incidental expense. And you should feel free to incur ex­ pense in the public interest. So I am returning the check.34 Thus began a financial arrangement between Louis Brandeis and Felix Frankfurter that lasted until 1939. As the expenses of Frank­ furter's efforts rose, so did the amounts of money sent by Brandeis. In mid-1917, the Justice placed $1000 in a special account he set up for Frankfurter; he continued to deposit that sum yearly until 1925. In that year, he deposited $1500. From 1926 until Frankfurter's nomination to the Supreme Court in 1939, Brandeis provided $3500

32. Letter to Emma W. Frankfurter (Nov. 14, 1916), reprinted in IV LETTERS, supra note 1, at 265. - 33. Letter to F.F. (Nov. 19, 1916), reprinted in IV LETTERS, supra note I, at 266. 34. Letter to F.F. (Nov. 25, 1916), reprinted in IV LETTERS, supra note 1, at 266-67. 1262 Michigan Law Review [Vol. 78:1252 yearly in two installments for use as the professor deemed appropri­ ate. 35 Frankfurter received these payments regularly and automati­ cally: Brandeis simply instructed his secretary to deposit the money in Frankfurter's account. Once, in 1927, Brandeis forgot to make the payment, and was embarrassed when Frankfurter tactfully called the matter to his attention: Yours of 31st just received. I am deeply chagrined at my oversight in not having Miss Malloch make the deposit of $2000 on Jan. lst/27. I am writing her by this mail & asking her to advise you immediately on making the deposit. Until further notice, it is my intention that $1500 shall be deposited Oct. 1, and $2000, Jan. I during each year for our joint endeavors through you. If, by any chance, the deposit is not regu­ larly made please enquire of Miss Malloch or let me know.36 Attempting to estimat~ the value of Brandeis's payments in terms of the value of today's dollars is, at best, a risky business. The value of money fluctuated so much during those twenty-three years that we can suggest only rough equivalencies. If, however, one multiplies the $52,250 which Brandeis gave Frankfurter during this period by an average of five, 37 it emerges that, in today's dollars, the Justice paid the professor more than a quarter of a million dollars. Put an­ other way, Brandeis's $3500 contributions between 1926 and 1938 vary in value between $11,500 and $17,800 in present-day dollars.38 In addition to the direct deposits to Frankfurter's account, Bran­ deis supplied money for special purposes. In April, 1920, for exam­ ple, Brandeis offered to pay Frankfurter's expenses in attending the

35. There are numerous references to the financial arrangement between the two in L.D.B.'s letters to F.F.. For example, in addition to letters cited in notes 33-34 Stlpra and notes 36, 39-41 infra, see the following letters from L.D.B. to F.F.: (May 3, 1917) (located in the Felix Frankfurter Papers, Manuscript Division, Library of Congress, Washington, D.C. [here­ inafter cited as Frankfurter Mss.-LC)); (Jan. 3, 1923) (located in the Frankfurter Mss.-LC, supra); (Jan. 6, 1923) (located in the Frankfurter Mss.-LC, St1pra); (Mar. 17, 1925) (located in the Frankfurter Mss.-LC, St1pra); (Sept. 24, 1925), reprinted in V LETTERS, Stlpra note I, at 187- 88; (Oct. 3, 1925) (located in the Frankfurter Mss.-LC, St1pra); (Dec. 27, 1925) (located in the Frankfurter Mss.-LC, Stlpra); (Aug. 8, 1926) (located in the Frankfurter Mss.-LC, Stlpra); (Oct. 2, 1926) (located in the Frankfurter Mss.-LC, St1pra); (June 5, 1927), reprinted in V LETTERS, supra note I, at 292-93; (Aug. 15, 1927) (located in the Frankfurter Mss.-LC, Stlpra); (Apr. 11, 1929) (located in the Frankfurter Mss.-LC, St1pra). In addition, see letter to Julian W. Mack (Jan. 12, 1922), reprinted in V LETTERS, Stlpra note I, at 43. 36. Letter to F.F. (June 2, 1927), reprinted in V LETTERS, St1pra note I, at 290. 37. Computations based on the consumer price indices indicate that the value of money during the period ranged from a high of 6.2 times the present value of the dollar (in 1916) to a low of3.4 times (in 1920). An average of these multipliers, however, reveals that money dur­ ing the entire period was worth roughly five times its present value. 38. These figures were computed using the Consumer Price Indices given in the STATISTI· CAL ABSTRACT OF THE UNITED STATES (1957), and the STATISTICAL ABSTRACT OF THE UNITED STATES (1979). August 1980] Brandeis and Franifurter 1263

Zionist Conference in London that year.39 Similarly, in the fall of 1929, Brandeis promised Frankfurter $2500 so that he could hire Wilbur G. Katz as a research aide in preparing a casebook on fed­ eral jurisdiction.40 And from 1924 to 1939, Brandeis provided the money for a fellowship for graduate study under Frankfurter.41 Brandeis had frankly acknowledged from the start that the pur­ pose of the payments was to permit the Justice "to feel free to make suggestions." And Brandeis believed in getting his money's worth. Between 1916 and the inauguration of Franklin D. Roosevelt in 1933, Frankfurter received a veritable torrent of suggestions and re­ quests. They were advanced in hundreds of letters, several of which arrived at Cambridge almost every week (with some days seeing two or even three). The suggestions and requests were sometimes deliv­ ered in person when Frankfurter came down to Washington or when Brandeis passed through Boston. Sometimes they were made through intermediaries, and sometimes they were presented during the Frankfurters' visits with the Brandeises at their summer home on Cape Cod. The Justice's suggestions to the professor ranged over the whole spectrum of Brandeis's reform interests: Zionism, politics, social leg­ islation, public opinion, legal education, judicial reform, insurance, labor. This massive body of requests, suggestions and instructions, coming, as it did, during a period of war and general political con­ servatism, represents the persistent attempt of one progressive re­ former to pass on the torch of American liberalism to a generation that must often have seemed discouragingly indifferent. This article will provide only a brief sampling of the sorts of suggestions and requests made by Brandeis and the efforts by Frankfurter to imple­ ment them in the face of a prevailing social conservatism during these sixteen years.

III The Hotel Astor ambush and Brandeis's resignation from the of­ ficial Zionist leadership did not sever his intimate connection with the movement. On the contrary, from 1916 until 1921, Brandeis was easily the most influential Zionist in the United States. Judge Julian

39. See Letter to Jacob deHaas (Apr. 17, 1920), reprinted in IV LETTERS, supra note 1, at 458. 40. See Letter to F.F. (Mar. 6, 1929), reprinted in V LETTERS, supra note l, at 371-72; Letter to F.F. (Sept. 20, 1929), reprinted in V LETTERS, supra note 1, at 385-87_. 41. See Landis, Mr. Justice Brandeis and the Harvard Law School, 55 HARV. L. REV. 184, 189 (1941). 1264 Michigan Law Review [Vol. 78:1252

W. Mack and Rabbi Stephen S. Wise, two of his most devoted fol­ lowers, held the titular offices; but there was no detail so small, nor any policy question so large that Brandeis failed to pass upon it per­ sonally. Daily letters from Washington, from "the chief," the "invis­ ible leader," charted the broad course and laid down the detailed marching orders for the movement. And in his tireless efforts to mold and direct American Zionism, Justice Brandeis found plenty for Professor Frankfurter to do. Brandeis often chose Frankfurter as an envoy to convey particu­ larly private and delicate views and messages. Frankfurter carried personal messages back and forth across the Atlantic Ocean between Brandeis and a host of English Zionists and Zionist sympathizers: Baron Edmond deRothschild, Chaim Weizmann, Arthur J. Balfour, Lord Eustace Percy (one of Frankfurter's former housemates), and Harold Laski.42 Brandeis also used Frankfurter to carry his messages and views to Americans, both Zionists and non-Zionists. When he learned that William C. Bullitt would be accompanying Wilson to the Versailles Peace Conference, for ·example, Brandeis assured Jacob deHaas, a leading Zionist functionary in New York, that "F.F. will make clear to him our position on Zionist matters."43 In September, 1919, Brandeis instructed Frankfurter about enlisting Walter Lippmann's editorial influence in the movement: As to Walter L. & Zionism: He could be of greatest use by writing with a view to securing the support of the American intellectual Jews. That is 1. their support generally for the movement 2. their special aid in carrying forward our American social views in Palestine. . Walter's writing and thinking should be continuous to this end, & he should keep in frequent touch with Ben Flexner.44 In addition to carrying messages, Frankfurter was also assigned important duties in the realm of Zionist policy formation. In Janu­ ary, 1918, Brandeis told Chaim Weizmann, the leader of the World Zionist Organization, that he would ask Frankfurter and Judge Mack to begin "the framing of charter provisions and regulations" relating to the future of Palestine.45 A year later, in preparation for

42. See, e.g., Letter to Edward deRothschild (Aug. 10, 1917), reprinted in IV LETTERS, supra note 1, at 302-03; Letter to F.F. (June 5, 1919), reprinted in IV LETTERS, supra note 1, at 396-97. 43. Letter to Jacob deHaas (Nov. 28, 1918), reprinted in IV LETTERS, supra note 1, at 366. 44. Letter to F.F. (Sept. 25, 1919), reprinted in IV LETTERS, supra note 1, at 427. 45. Letter to Chaim Weizmann (Jan. 13, 1918), reprinted in IV LETTERS, supra note 1, at 334-35. August 1980) Brandeis and Frankfurter 1265

Brandeis's trip to Palestine, the Justice requested that Frankfurter and Ben Flexner prepare detailed "reports, surveys and recommen­ dations" on Palestinian affairs - covering everything from the ac­ counting system to public utilities, from labor problems to museums and music.46 Eight months later, Brandeis suggested that a high level committee study his ideas for improving Palestinian education: "Talk this over with Laski, and when opportunity serves with Abe and Ben Flexner and others," Brandeis directed Frankfurter, "and when you are ready with your suggestions let deHaas have them."47 Two months later, Brandeis listed ten Palestinian topics for Frank­ furter to consider and present to the National Executive Commit­ tee.48 In August, 1920, Brandeis returned from the London Zionist Conference, leaving Frankfurter· behind in England. He promptly ordered Mack to "[c]able Flexner that action on all matters was post­ poned to meeting to be held Sept. 29th & suggest that he & Felix prepare, while on voyage over, fully a program for action - so that you may have in concrete form their suggestions when they ar­ rive."49 Besides using Frankfurter as an envoy and assigning him the re­ sponsibility for formulating policy suggestions, Brandeis also turned to him for dozens of other Zionist tasks. Frankfurter was given the job of monitoring the organization's publicity.50 He was asked to review and edit sensitive correspondence.51 He was asked to con­ sider, with Mack, how to involve the financier Jacob Schiff in Pales­ tine work. 52 It was Frankfurter who laid the groundwork, with British officials, for Brandeis's personal trip to Palestine, and it was only after Frankfurter's personal assurances concerning the propri­ ety of the trip that Brandeis finally agreed to embark.53 Frankfurter was asked to 'jack up the Finance Committee [in New York] which

46. Letter to Bernard Flexner (Feb. 12, 1919), reprinred in IV LE'ITERS, supra note 1, at 378-81. 47. Letter to F.F. (Oct. 13, 1919), reprinred in IV LE'ITERS, supra note 1, at 431. 48. See Letter to F.F. (Dec. 4, 1919), reprinled in IV LETTERS, supra note l, at 439-40. 49. Letter to Julian W. Mack (Sept. 1, 1920), reprinred in IV LE'ITERS, supra note 1, at 477- 80. 50. See Letter to Jacob deHaas (Sept. 20, 1919), reprinled in IV LETTERS, supra note 1, at 425. 51. E.g., Letter to Jacob deHaas (Oct 15, 1919), reprinred in IV LE'ITERS, supra note l, at 432; Letter to F.F. (Dec. 16, 1920), reprinred in IV LETIERS, supra note l, at 518-19. 52. See Letter to Julian W. Mack (Dec. 2, 1919), reprinted in IV LETTERS, supra note 1, at 439. 53. See Letter to F.F. (May 19, 1919), reprinted in IV LETTERS, supra note l, at 394-95; Letter to F.F. (June 5, 1919), reprinted in IV LETTERS, supra note 1, at 396-97; Letter to Alice G. Brandeis (Aug. 1, 1919), reprinted In IV LETTERS, supra note 1, at 419-20. ' 1266 Michigan Law Review [Vol. 78:1252 sorely needs it,"54 to prod the Zionist leadership in Boston,55 to draft important letters for Brandeis's signature,56 to help handle the trou­ blesome visit of Chaim Weizmann to the United States.57 And when the tensions between the Weizmann and the Brandeis factions erupted in a schism in 1921, it was Frankfurter who journeyed to Cleveland to present the Brandeisians' case - standing for four hours before a shouting audience of Weizmann's hecklers.58 Naturally, Frankfurter was most valuable to Brandeis's Zionist work when legal questions were involved: Dear Felix: You will recall DeHaas' & my talk with you on General Counsel for the Z[ionist]. O[rganization]. & eventually counsel in the several states. Please consider this & discuss it with Mack, Flexner, [Howard] Gans, [Robert] Szold & others as occasion serves. Meanwhile there are two matters which should receive immediate at­ tention from the legal end. I. To make sure that the bill for incorporation [of the Zionist Organization of America] under the law of New York is in the best possible form & that steps are taken to ensure its passage as early in January as possible. II. To get ready a form or forms of bequest adequate in the several states, so that immediately after the act of incorporation is pro­ cured we may publish the forms and also prepare to utilize the occasion to get into touch with all Jewish lawyers in America, which you will recall we discussed also. In both these matters there has been unconscionable delay in the past. Now we should have prepared not only the legal forms but the form of letter and the mailing list, so that we may act promptly after passage of the act. DeHaas will send you herewith the files or part of files on each matter so that you can see what has been done . . . . Please let DeHaas know what you think should be done about this.s9 Most of the duties Brandeis assigned to Frankfurter concerned the internal affairs of the Zionist movement. On several occasions, however, Brandeis asked him to represent Zionist interests in impor­ tant national and international contexts. Brandeis arranged one

54. Letter to F.F. (Dec. 4, 1919), reprinted in IV LETTERS, supra note I, at 439-40. 55. See Letter to F.F. (Jan. 18, 1920), reprinted in IV LETTERS, supra note I, at 444. 56. See Letter to F.F. (Apr. 5, 1920), reprinted in IV LETTERS, supra note I, at 455-56, 51. See Letter to F.F. (Mar. 2, 1921), reprinted in IV LETTERS, supra note I, at 537-38. 58. See FRANKFURTER REMINISCES, supra note 19, at 180-81. It was another testimony to F.F.'s capacity for friendship that he and Weizmann remained fairly close: "There I was - four hours! But I don't think that Weizmann ever harbored any ill feelings toward me. Quite the contrary. We became after a while even closer friends than ever before. He was very eager to try to persuade me to move to Palestine." Id at 181. See also note 73 infra. 59. Letter to F.F. (Oct. 7, 1919), reprinted in IV LETTERS, supra note I, at 429, August 1980) Brandeis and Frankfurter 1267 such task in 1917 after America had finally entered the war. Henry Morgenthau, the former United States ambassador to Turkey, had urged a dramatic scheme upon his friend President Wilson. Mor­ genthau persuaded the President to send him to Europe to convince Turkey to sever its alliance with the Central Powers. 60 Since Pales­ tine was a part of the Ottoman Empire, the "Morgenthau mission" carried enormous importance for the.Zionists; they feared that Tur­ key would drop out of the war before the British could conquer the Holy Land and begin the process of establishing a Jewish homeland there.61 Using his influence with Wilson, and with Secretary of State Lansing and Secretary of War Baker, Brandeis arranged for Frank­ furter to accompany Morgenthau.62 It was also agreed that Frank­ furter and Morgenthau would write newspaper publicity for the mission and submit it to Brandeis and Lansing for approval.63 Once embarked, the mission proved a fiasco. A group of Zionists, includ­ ing Weizmann himself, met with Morgenthau in Gibraltar and quickly convinced him of the futility of the effort. Subsequently Frankfurter urgently cabled Washington that the mission was a com­ plete failure and that Morgenthau should be recalled as quickly as possible. 64 The collapse of the Morgenthau mission and Allied military suc­ cesses in the Middle East opened the way for the British to issue the crucially important Balfour Declaration in November, 1917. The Declaration announced the intention of His Majesty's government to help establish a national homeland for the Jews in Palestine.65 As early as Lord Balfour's visit to America in April, 1917, the American Zionists had sought to generate public support for British intentions and to win the Wilson administration's approval of such a declara­ tion. While Brandeis's role - interceding with Wilson directly - has been thoroughly reconstructed,66 Frankfurter's part in the story

60. See I. FRIEDMAN, THE QUESTION OF PALESTINE, 1914-1928, 211-16 (1973); FRANK­ FURTER REMINISCES, supra note 19, at 145-53; Yale, Ambassador Henry Morgenthau's Special Mission of1917, 1 WORLD PoL. 309-10 (1949). 61. See M. UROFSKY, supra note 14, at 209-10. 62. Yale, supra note 60, at 310. Yale, something of an "insider" in Middle East affairs, recalled: "Interestingly enough it was Justice Brandeis, one of the leading American Zionists, who suggested that Mr. Frankfurter should accompany Mr. Morgenthau on his special mis­ sion." Id (footnote omitted). 63. Letter to Jacob deHaas (June 7, 1917), reprinted in IV LETTERS, supra note I, at 296. 64. See FRANKFURTER REMINISCES, supra note 19, at 151. 65. See L. STEIN, THE BALFOUR DECLARATION (1961); I. FRIEDMAN, supra note 60. 66. See L. STEIN, supra note 65, at 422-28; Adler, 17ze Palestine Question in the Wilson Era, 10 JEWISH SOCIAL STUDIES 303 (1948); Parzen, Brandeis and the Balfour Declaration, 5 HERZL YEARBOOK 309 (1963); Lebow, Woodrow Wilson and the Balfour Declaration, 40 J. Moo. HIST. 501 (1968). 1268 Michigan Law Review [Vol. 78:1252

remains less clear. That he was close to the center of events and that he functioned, on the whole, as Brandeis's lieutenant cannot be doubted. He participated, with Brandeis, in important preliminary discussions with Balfour's staff in April;67 he reported to Brandeis on his private discussions on Zionist affairs with Eustace Percy, one of Balfour's entourage.68 Brandeis took Frankfurter along to a confer­ ence with Nahum Slouschz, a leading French Zionist, to explore the chances for gaining French approval of a British declaration.69 Upon returning to America after the Morgenthau debacle in mid­ summer, Frankfurter gave Brandeis "encouraging and enlightening" secret messages from Weizmann and Edmond deRothschild.70 Frankfurter then promptly traveled back to Europe with messages from Brandeis and returned to the United States, all less than a month before the actual issuance of the Declaration. "It was a great satisfaction to hear yesterday from Prof. Frankfurter fully concern­ ing your conference," Brandeis wrote Weizmann on October 8, "and to have this further evidence of your admirable management of our affairs. You can rely upon our hearty cooperation."71 Nearly twenty years later, in 1936, when it became important to convince the Brit­ ish of the American role in supporting the Balfour Declaration,12 Brandeis listed Frankfurter as one of the four men who would be likely to know all the details. 73

67. See Letter to Jacob deHaas (Apr. 24, 1917), reprinted in IV LETTERS, supra note I, at 283. 68. See Letter to Jacob deHaas (Apr. 26, 1917), reprinted in IV LETTERS, supra note I, at 284-85. 69. See Letter to Jacob deHaas (May 4, 1917), reprinted in IV LETTERS, supra note I, at 286-87. 70. See Letter to Edward deRothschild (Aug. 10, 1917), reprinted in IV LETTERS, supra note 1, at 302-03. 71. Letter to Chaim Weizmann (Oct. 8, 1917), reprinted in IV LETTERS, supra note I, at 314-15. 72. In 1936, after an enormous surge of Jewish immigration into Palestine, tensions devel­ oped between the Jews and Arabs residing in and around Palestine. These tensions culminated in a series of Arab riots and in a general strike called by the Arab Higher Commit­ tee. In an attempt to preserve order, the British halted further Jewish immigration into Pales­ tine and appointed a Royal Commission to study the problem. Upon the urgings of numerous Jewish leaders in the United States and a personal appeal by Stephen Wise, President Roosevelt directed Secretary of State Cordell Hull to write a letter to the British government stating that the United States would regard suspension of the Jewish immigration as a breach of the Balfour Declaration. The British thereafter altered their policy, allowing the immigra­ tion to continue while the Commission completed its report. See M. UROFSKY, supra note 14, at 402-03. 73. See Letter to Robert Szold (Sept. 5, 1936), reprinted in V LETTERS, supra note I, at 577- 81. Similarly, in 1920, L.D.B. wrote to Rabbi Abba Hillel Silver, who was trying to prepare a summary of the differences among the various Zionist factions: I venture to suggest that you consider with Judge Mack and with Prof. Frankfurter whether my apprehension in this respect is well founded. I include Prof. Frankfurter because he, of all Americans, is I believe the closest friend of Dr. Weizmann & he has August 1980] Brandeis and Frankfurter 1269

Frankfurter provided a special service for Brandeis at the Ver­ sailles Peace Conference in 1919. The Zionists' central aim at Ver­ sailles was to ensure that the promise of the Balfour Declaration would be implemented. Frankfurter attended the Conference, not as a part of the American delegation, but at the behest of the Zionist Organization of America. His chief duty was to draft the position papers for the Zionists and to work for the awarding of a mandate over Palestine to Great Britain. There was no secret about who had sent him. "Justice Brandeis and Judge Mack, were very anxious that I should go, to be, as it were, the American responsible for working with the British," he later recalled. He described his position as "holding a 'watching' brief for Zionists before the Peace Confer­ ence."74 Frankfurter's biographer put the matter more succinctly: "At the Peace Conference he was Brandeis' eyes, ears, and spokes­ man."75 Naturally, between Weizmann's defeat of the Brandeis-Mack leadership at the explosive Cleveland Convention of June, 1921 and the triumphant return to power of the Brandeis-Mack faction in 1931, the Justice's involvement in Zionist affairs was much dimin­ ished. He stayed in close communication with the other members of the faction, but he no longer had responsibility for day-to-day super­ vision of the movement. Therefore, throughout the 1920s, he made fewer Zionist requests of Frankfurter, and many of the requests he did make were inconsequential. He asked Frankfurter to provide letters of introduction for Solomon Rosenbloom's mission to Europe and Palestine,76 to help shield Judge Benjamin-Cardozo from Jewish politics,77 and to help find a suitable job for Alexander Sachs, a Zi­ onist functionary retiring from the New York office.78

personal knowledge, as no one else in America has, of most of my conferences with Dr. Weizmann. Letter to Abba H. Silver (Oct. 24, 1920), reprinted in IV LETTERS, supra note I, at 493-94. 74. FRANKFURTER REMINISCES, supra note 19, at 155. One of F.F.'s most important achievements at Versailles was to secure an exchange ofletters with the Arab leader, Prince Feisal. In his letter, dated March 3, 1919, Feisal had written: "We Arabs look with the deepest sympathy on the Zionist movement. ... [W]e will wish the Jews a most hearty welcome home.'' N.Y. Times, Mar. 15, 1919, at 7, col. 2. There is no evidence that F.F. undertook this particular diplomatic initiative at L.D.B.'s request. 75. L. BAKER, supra note 19, at 83. It should be noted that once he arrived in Paris, F.F. was drawn into various non-Zionist aspects of the negotiations, principally into helping to draw the charter for the International Labor Organization. 16. See Letter to F.F. (Jan. 12, 1922) Oocated in the Felix Frankfurter Papers, Harvard Law School Library, Cambridge, Massachusetts [hereinafter cited as Frankfurter Mss.-HLS]). 11. See Letter to F.F. (Jan. I, 1927), reprinted in V LETTERS, supra note I, at 258-59. 78. See Letter to F.F. (Sept. 15, 1921) Oocated in the Frankfurter Mss.-HLS, supra note 76). 1270 Michigan Law Review [Vol. 78:1252

But Brandeis's letters to Frankfurter did contain a number of substantial and significant Zionist assignments. A week after the Brandeis-Mack leadership fell from power, some of the deposed fac­ tion met in New York. There they listened as Brandeis outlined their work for the future. Frankfurter was not present, but Brandeis lost little time in explaining his first assignment: Some immediate work was agreed upon which will require special at­ tention from you: We must prepare & have ready for circulation in English, German and Hebrew - by July 15 - a full and persuasive statement of our case - for circulation widely abroad in advance of the Congress . . . I don't see that anyone of our crowd except you can do this.79 And in October, 1923, Brandeis resurrected some unfinished busi­ ness: There is one bit of Palestine work which I should like to have you undertake if you see no objection. You know that for years I have believed that an appropriate letter should go to a select body of Jewish lawyers calling attention to the possibility . . . of bequests for Pales­ tine. There were 5 years of delay before anything was done. Then it was left to DeHaas to send out some letters. I don't know how much he has done of this. But whatever it was, it was nothing. The letter should have gone from our distinguished lawyers in distinguished form. I think one signed by you as chairman etc or something would be most effective. You will know what to say, to whom to send it, who else should sign, etc. But this idea, which may win us much money & open the way to other support, should be appropriately followed up. so Brandeis also continued to use Frankfurter to relay messages and to reinforce messages he had delivered himself.81 In addition, he in­ sisted that Frankfurter be kept informed of Zionist plans by receiv­ ing copies of letters from deHaas and others. 82 Brandeis also expected Frankfurter to advise him on policy questions from time to time.83 And when skilled diplomatic work was required, Brandeis automatically turned to the professor. In 1929, for example, Prime

79. Letter to F.F. (June 13, 1921), reprinted in IV LETTERS, supra note I, at 565. 80. Letter to F.F. (Oct. 24, 1923), reprinted in V LETTERS, supra note I, at 102-03. 81. E.g., Letter to Jacob deHaas (Dec. 29, 1923), reprinted in V LETTERS, supra note I, at 106-07. In addition, see the following letters to F.F.: (June 16, 1927), reprinted in V LETTERS, supra note I, at 294; (Sept. 23, 1929), reprinted in V LETTERS, supra note I, at 389-91; (Sept. 15, 1921) (located in the Frankfurter Mss.-HLS, supra note 76). 82. See, e.g., Letter to F.F. (Apr. 6, 1923), reprinted in V LETTERS, supra note I, at 90; Letter to F.F. (Feb. IS, 1927), reprinted in V LETTERS, supra note I, at 271-72. 83. See, e.g., Letter to Julian W. Mack and Stephen S. Wise (Nov. 3, 1921), reprinted in V LETTERS, supra note I, at 27-28. For further examples, see the following letters to F.F.: (Feb. 25, 1924), reprinted in V LETTERS, supra note I, at 116-17; (June 16, 1927), reprinted in V LETTERS, supra note I, at 294; (Sept. 20, 1929), reprinted in V LETTERS, supra note I, at 385-87. August 1980] Brandeis and Frankfurter 1271

Minister Ramsay MacDonald announced a trip to the United States. "I had not thought it important that I should see MacDonald;" Bran­ deis wrote Frankfurter, "But I think it very important that you should. And if it proves that I am to see him, I want you present."84 In short, Justice Brandeis entrusted a wide variety of Zionist tasks to Frankfurter over the years. From 1916 to 1921, when Bran­ deis controlled the movement, Frankfurter's assignments were nu­ merous; on occasion, especially in the field of international diplomacy, they were extremely important. From 1921 to 1931, with the Brandeis-Mack faction out of power in the American Zionist Or­ ganization, Frankfurter's Zionist work was lessened; but by no means did it end. Brandeis still made regular requests, some of them involving significant aspects of Zionist politics and policy. And yet what is astonishing about the relationship of these two men is not that Brandeis, while a Supreme Court Justice, asked Frankfurter to undertake a large quantity of Zionist labor. What is astonishing is that Frankfurter's Zionist assignments comprised so small a portion of the work that Brandeis was sending his way.

IV Zionism was not the only unfinished public business for Louis Brandeis when he ascended to the Supreme Court in 1916. At the time of his nomination he was nationally recognized as the nation's foremost courtroom champion of progressive social legislation. Since 1908, when Brandeis had submitted his monumental and path­ breaking brief in Muller v. Oregon,85 he had regularly appeared in defense of state laws regulating the hours of labor or attempting to set a minimum wage for workers. Serving as the unpaid counsel for the National Consumers League, and working closely with his sister­ in-law, Josephine Goldmark, a researcher for the League, Brandeis filed his trademarked briefs - light on legal precedent, overwhelm­ ingly persuasive on economic, sociological and medical data - and his string of victories was spectacular. 86

84. Letter to F.F. (Sept. 20, 1929), reprinted in V LETTERS, supra note I, at 385-87. On October 4, L.D.B. did receive an invitation to meet MacDonald (''This I think is the result of Felix's cables to Harold [Laski]" he wrote Mack). And after arming himself with suggestions from Mack, deHaas, and F.F., L.D.B. met MacDonald on October 9. For another example of relying on F.F. for diplomatic tasks, see Letter to British diplomat Rennie Smith, Oct. 29, 1930, reprinted in V LETTERS, supra note l, at 459. In reacting angrily to British policy in Palestine, L.D.B. wrote Smith, ''The government's proposal seems to me unbelievably bad. If, as I hope, you have seen Frankfurter or Robert Szold, you will know my vi_ews." 85. 208 U.S. 412 (1908). 86. See, e.g., W. C. Ritchie & Co. v. Wayman, 244 Ill. 509 (1910); Ex parte Hawley, 85 Ohio St. 494 (1912); Hawley v. Walker, 232 U.S. 718 (1914); Miller v. Wilson, 236 U.S. 373 1272 Michigan Law Review (Vol. 78:1252

At the time of his nomination, Brandeis had several of these cases pending. He and Goldmark were working both on briefs to defend Oregon's ten-hour law for men in Bunting v. Oregon,81 and on the highly controversial Oregon minimum wage cases, Stettler v. O'Hara88 and Simpson v. O'Hara. 89 He had already successfully ar­ gued the minimum wage cases in Oregon state courts and the Stettler case before the United States Supreme Court (where a reargument was ordered) when his nomination required him to retire from the cases. Naturally, he chose Frankfurter to finish these tasks. The Harvard professor succeeded Brandeis as unpaid counsel for the Na­ tional Consumers League and - once again with Josephine Gold­ mark - started preparing the cases for trial. There is no written evidence that Brandeis and Frankfurter consulted about the cases, but it is scarcely conceivable that the two men did not discuss them in detail. It is not surprising, therefore, that when Frankfurter presented the briefs and made the arguments before the Supreme Court (Brandeis, of course, withdrawing from consideration of the cases), he followed Brandeis's earlier strategy precisely.90 The con­ temporary constitutional authority Thomas Reed Powell, like many commentators since, pointed out that Frankfurter's minimum wage brief "follows the model set by Mr. Brandeis in the brief on behalf of the state in Muller v. Oregon."91 Brandeis's willingness to take such cases while still in private practice reflected his reformer's faith in the efficacy of social legisla­ tion. He preached industrial cooperation; but he always believed that "the people" needed positive laws to aid them in their unequal struggle against "the interests." This faith had led him not only to defend the labor laws of various states, but to fight for passage of social legislation as well - first in Massachusetts and, as his fame and influence as a lawyer spread, in Washington, D.C. His interest in framing and securing such laws did not disappear in 1916, nor did his influence with the progressive Senators and Congressmen who had so often turned to him for advice in the past. Justice Brandeis used Felix Frankfurter as a conduit to convey

(1915); Bosley v. McLaughlin, 236 U.S. 385 (1915). See J. G0LDMARK, IMPATIENT CRUSADER 143-79 (1953). 87. 243 U.S. 426 (1917). 88. 69 Or. 519, 139 P. 743, ajfd. per curiam, 243 U.S. 629 (1914). 89. 70 Or. 261, 141 P. 158 (1914), ajfd. per curiam, sub nom. Stettler v. O'Hara, 243 U.S. 629 (1917). . 90. The Court sustained the Oregon ten-hour law for men in a five to three decision. 243 U.S. 426 (1917). The Court split four to four on the minimum wage law, thereby sustaining it. 91. Powell, The Oregon Minimum-Wage Cases, 32 PoL. Sci. Q. 296 (1917), August 1980] Brandeis and Frankfurter 1273 specific legislative proposals to such congressional progressives as Senators Thomas J. Walsh (Montana), Burton K. Wheeler (Mon­ tana), George W. Norris (Nebraska), Robert F. Wagner (New York), and Robert M. LaFollette (Wisconsin), and Representatives R. Wal­ ton Moore (Virginia) and Fiorella LaGuardia (New York). At Brandeis's urging, Frankfurter would follow up the original ideas by steadily supplying information and encouragement to the lawmakers. Indeed, so anxious was Brandeis for progressive legislation that once, in the mid-1920s, he stepped back from making specific pro­ posals through Frankfurter and hatched an ambitious scheme for the wholesale mass-production of such laws. He laid the plan out for Frankfurter on New Year's Day, 1925, and carefully explained the professor's role: You will recall our asking John M. Nelson (with E. Keating) to dine to talk over election results. I set forth to him my views (a) the need of a general staff of thinkers, who shall be divorced from office & the politi­ cal task of putting things over. (b) the need of developing a body of doers, by setting men to the accomplishment of local tasks within their capacities. He stated as to (a) at this time his favorable inclination, as he had himself thought vainly about what he ought to put through if, by chance, the Progressives had succeeded [in the election of 1924]. Last week he telephoned for a[n] appointment, said he was wholly con­ vinced of (a), that he had been talking over the whole situation. with two men of high character & public spirit in the House. One a good Republican, the other a good Democrat. That he was pretty sure that they could form, in the next Congress, a coalition which could control the House & that they (the three) wanted to develop the (a) project etc., Nelson putting himself & associates in the background. He wanted me to pick out men for the general staff whom he could call on etc. after March 4. I told him of you (of course confidentially) & that I would ask you to think up the men to ask. It seems to me that we ought to be able to find a group of men willing to be the politico-economic think­ ers, who would, in privacy, think out what it is wise to do, why & how.92 Six weeks later, Brandeis arranged for a face-to-face meeting be­ tween Nelson and Frankfurter; and by the end of May, the professor was ready with a full report for the Congressman.93 In general, however, Brandeis felt more comfortable (in this as in

92. Letter to F.F. (Jan. l, 1925), reprinted in V LETTERS, supra note 1, at 155-56. John M. Nelson was a LaFollette Republican from Wisconsin. He served in the House from 1906 to 1919 and again from 1921 to 1933. 93. See Letter to F.F. (Feb. 21, 1925), reprinted in V LETTERS, supra note 1, at 165-66; Letter to F.F. (June 2, 1925), reprinted in V LETTERS, supra note 1, at 174-75. 1274 Michigan Law Review [Vol. 78:1252

other things) with an approach focusing on specifics. Over the years he bombarded the professor with concrete legislative proposals aimed at accomplishing narrow progressive goals. He demonstrated his concern for the plight of injured railroad workers, for example, by making this suggestion to Frankfurter in 1928: Hasn't the time come for legislation bringing the RR's under compen­ sation acts? If so this simple device might be suggested to John B. Andrews. Have Congress pass an act making it optional for RR's in any state that has the requisite compensation law, to elect to come under it in respect to its interstate operations; & wherever it does elect, make the state aid apply to all accidents happening within the state.94 There is no evidence that Frankfurter acted on this proposal, al­ though Brandeis mentioned it again in 1930,95 but it is possible that the professor conveyed the idea orally to Washington contacts. The pair obtained better results when Brandeis turned to one of the most persistent of labor grievances, the indiscriminate issuance of injunctions against workers during labor disputes. For years talk had circulated about an effective bill against labor injunctions, and Brandeis had scrutinized the various drafts and suggestions. On February 11, 1928, he wrote to Frankfurter: Senator [Henrik] Shipstead was in last evening. His Anti-injunction bill is the result of his intimacy with Andrew Furuseth who almost lives at the Shipsteads [sic]. If the injunction bill (which I haven't seen) is not drawn as it should be, you can doubtless get it changed, as you deem wise. For the subcommittee of the judiciary consists of Tom Walsh, Norris and [John J.] Blaine. Furuseth is also intimate with the LaFollettes - breakfasts there every Sunday.96 As it turned out, the bill, drawn by the self-taught labor leader Furuseth, had so many flaws that even friends of the principle of restricting injunctions could not support it. Given Brandeis's inti­ macy with young LaFollette, Walsh, Blaine (of Wisconsin) and Shipstead, it is not surprising that Frankfurter was called to Wash­ ington in May to help in the redrafting. Norris introduced the new bill on May 29, and after additional refining and amendment, it served as the basis for the Norris-LaGuardia Act of 1932.97

94. Letter to F.F. (March 16, 1928), reprinted in V LETTERS, supra note I, at 329-30. John B. Andrews was secretary of the American Association for Labor Legislation. 95. See Letter to F.F. (May 15, 1930) (located in the Frankfurter Mss.-LC, supra note 35). 96. Letter to F.F. (Feb. 11, 1928), reprinted in V LETTERS, supra note I, at 322-23. 97. See Letter from George Norris to F.F. (May 5, 1928) (located in the Frankfurter Mss.­ LC, supra note 35); Letter from F.F. to George Norris (June 21, 1928) (located in the Frank­ furter Mss.-LC, supra note 35); Letter from George Norris to F.F. (Mar. 27, 1931) (located in the Frankfurter Mss.-LC, supra note 35); Letter from F.F. to George Norris (Mar. 30, 1931) (located in the Frankfurter Mss.-LC, supra note 35). For a clear account of the history of this legislation, see I. BERNSTEIN, THE LEAN YEARS: A HISTORY OF THE AMERICAN WORKER, 1920-1933, 391-415 (1960). August 1980) Brandeis and Franifurter 1275

But Brandeis's interest in securing liberal legislative measures was not confined to labor laws. The Justice was deeply disturbed by the federal and state invasion of civil and political liberty during World War I. "I think the failure to attempt such redress as against government officials for the multitude of invasions during the war and post-war period is also as disgraceful as the illegal acts of the government and the pusillanimous action of our people in enacting the statutes which the states and nation put on the books," he wrote Frankfurter in June, 1926. "Americans should be reminded of the duty to litigate."98 Three weeks later he was ready with a concrete suggestion: Wouldn't it be possible to have some one in Congress move for a Claims Commission to make reparations to American citizens for the outrages incident to the Jan 20 [1920] Palmer raids? An article on the Sedition law reparations would prepare the way. And the move for appointment of the Commission might lead to diplomatic representa­ tions by foreign nations who have settled their debts & by Russia, when it is recognized.99 Given Congress's constitutional power to shape the jurisdiction of the federal courts100 and Brandeis's dissatisfaction with the ex­ isting jurisdictional standards, it was inevitable that the Justice would put Frankfurter to work on that legislative project as well. Through Frankfurter, Brandeis forwarded legislation designed to limit the diversity of citizenship jurisdiction of the federal courts. After floating the idea by various Congressmen (always asking Frankfurter to pass along his book, The Business of the Supreme Court, 101 in order to further educate the lawmakers), Brandeis re­ ported to the professor in March, 1928, that he had finally found a receptive ear in Congress: R. Walton Moore is an "old Virginian of the best type" - now in his fifth term in Congress - formerly commerce counsel for the Southern carriers. When he dined with us Thursday, he volunteered the sugges­ tion that the diversity of citizenship jurisdiction should be abridged. That led to my telling him I would ask you to send him your "Busi­ ness" & his saying that with a little pushing (which he was ready to give) he thought a bill or bills could be put through, raising the juris­ dictional amount & otherwise bringing abridgement. In the course of the talk, it was suggested that you & associates might be willing to

98. Letter to F.F. (June 25, 1926), reprinted in V LETTERS, supra note 1, at 225-26. 99. Letter to F.F. (July 16, 1926), reprinted in V LETTERS, supra note 1, at 229. 100. See Turner v. Bank ofNonh America, 1 U.S. (4 Dall.) 8 (1799). 101. Authored by F.F. and his colleague James M. Landis, the book examined the devel­ opment of the federal court system under the successive federal Judiciary Acts that had existed prior to 1925. The work attempted to illustrate how political and economic developments were reflected in the frequently changing procedures of the courts. 1276 Michigan Law Review [Vol. 78:1252

draw the desirable bills. I suggest now that you merely send him "Business" with a letter saying that you do so at my suggestion. I think he will answer, asking you to draw some bills etc. & furnish data. When the time comes for work on your part, [Henry J.] Friendly can, I think, be drafted by you. 102 When the Congressman reacted as anticipated, Brandeis sent Frank­ furter the specifics: R.W. Moore writes me that he has written you asking for draft or drafts of bill or bills . . . . I should think limiting diversity of jurisdic­ tion: (a) By raising the limit to $10,000-might escape serious opposi­ tion; (b) By excluding foreign corporations which have a usual place of business within the state (excepting interstate RR, telegraph & tele­ phone companies) might get reasonable support. I make the excep­ tions only in order not to have the combined opposition of the utilities. What amendments are prepared, ought to be each by a separate bill & each bill as short as possible. I assume you will write Friendly. 103 Once drafted, these measures were submitted, by Moore, to the House Committee on the Judiciary, but they got no further. The Supreme Court's decision in Black & IVhite Taxicab & Tran.ifer Co. v. Brown & Ye/low Taxicab & Transfer Co., 104 one month later, intensified the e.fforts of Brandeis and Frankfurter to restrict the jurisdiction of the federal courts. The case highlighted some of the problems caused by diversity of citizenship jurisdiction. The Brown & Yellow Taxi Company enjoyed a monopoly of service from the Louisville railroad station. Knowing that it would lose in the Kentucky state courts if challenged by the rival Black & White Company, it rechartered itself in Tennessee and brought suit infed­ eraf court to preserve its monopoly. Under the prevailing doctrine of Sw!ft v. Tyson, 105 the federal courts were not bound to follow the state's common-law monopoly rules. Thus when the case came to the Supreme Court, a six-man majority upheld the arrangement. Brandeis joined Holmes in a vigorous dissent. But he did more than that. Responding to a Frankfurter inquiry, Brandeis sent specific legislative suggestions and instructions designed to overturn the decision of his brethren on the Court: I think it woajd be an excellent idea to draft a bill to correct the alleged rule acted on as to general law in the Black & White taxi case. The

102. Letter to F.F. (Mar. 4, 1928), reprinted in V LETTERS, supra note I, at 326-28. Friendly was a former F.F. student who was serving as L.D.B.'s law clerk for the 1927-1928 Term. At the urging of L.D.B. and F.F., Friendly became an expert in the diversity of citizen­ ship question. See Friendly, The Historical Basis ofl)iversity Jurisdiction, 41 HARV. L. Rev. 483 (1928). 103. Letter to F.F. (Mar. 16, 1928), reprinted in V LETTERS, supra note I, at 329-30. 104. 276 U.S. 518 (1928). IJ5. 41 U.S. (16 Pet.) I (1842). August 1980] Brandeis and Frankfurter 1277

draft bill should go to Sen. Tom Walsh. He sat through the reading of the opinions, seated in a front seat, & seemed much interested. 2. Another bill should be drawn, correcting the court's error in con­ struction of the Fed Statutes as to what is a fraud on its jurisdiction. Such action as was taken in the Black & White Case, ought to be pro­ hibited whether strictly a fraud or not. That bill should go to Judge [R. Walton] Moore. 3. Another bill should be drafted to put an end to removals, where there is a several controversy. That provision is being construed as removing the whole cause - an obvious injustice to those defendants who want to remain in the State Court, & to the pl[ainti]ff. That bill also should go to Judge Moore. 106 Two days later, Frankfurter sent the corrective measure to Senator Walsh with a letter denouncing the doctrine of Sw!ft v. Tyson and suggesting that the Black and White case "shows that there are no limits to this abuse, and plainly calls for remedial legislation by Con­ gress." 107 Walsh responded that he would gladly introduce the bill, and he did so a week after receiving it. 108 Though Frankfurter con­ tinued to advise regarding strategies to defend the bill in Senate hearings, it never passed. On the same day that Frankfurter received Brandeis's sugges­ tions for new diversity jurisdiction statutes, he also got an invitation from Senator Norris to join a legislative drafting session dealing with the same general area. This gave him another opportunity to push the Brandeis proposals. 109 Despite Brandeis's prediction that "the Norris-Walsh-Blaine connection should be fruitful in coming years," 110 little came from their efforts. Frankfurter sent Norris six proposed measures and supporting memoranda designed to restrict federal jurisdiction, but Congress never acted. The professor was re­ duced to reminding Norris, over the next decade, of the need for the legislation. 111 Finally, in 1938, the Supreme Court eliminated much of the need for such laws with its ruling in Erie v. Tompkins, which

106. Letter to F.F. (Apr. 21, 1928), reprinted in V LETTERS, supra note l, at 336-37. 107. Letter from F.F. to Senator Thomas Walsh (Apr. 23, 1928) (located in the Frankfurter Mss.-LC, supra note 35). 108. See Letter from Senator Thomas Walsh to F.F. (Apr. 27, 1928) (located in the Frank­ furter Mss.-LC, supra note 35); S. 433, 70th Cong., 1st Sess. (1928). 109. See Letter from George Norris to F.F. (Apr. 21, 1928) (located in the Frankfurter Mss.-LC, supra note 35). 110. Letter to F.F. (May 19, 1928) (located in the Frankfurter Mss.-LC, supra note 35). 11 l. For examples, see the following letters from F.F. to George Norris: (May 15, 1929); (Jan. 5, 1932); (Mar. 10, 1932); (Apr. 13, 1932); (Feb. 18, 1936); (Mar. 4, 1936); (Apr. 2, 1936) (all located in the Frankfurter Mss.-LC, supra note 35). In addition, see the following letters from George Norris to F.F.: (Mar. 11, 1932); (Apr. 6,, 1932); (Feb. 22, 1936); (Mar. 24, 1926) (all located in the Frankfurter Mss.-LC, supra note 35). 1278 Michigan Law Review [Vol. 78:1252 overturned the Sw!ft doctrine. 112 Fittingly, the Erie decision was written by Louis Brandeis. Brandeis's suggestions and requests to Frankfurter relating to the executive branch of the government were fewer. During the Wilson administration, of course, the Justice had his own wide-ranging con­ tacts in Washington and did not need Frankfurter's assistance in presenting his proposals. Then, because of the vast gulf between the views of the two men and the Republican administrations of the 1920s, there were few opportunities for fruitful lobbying. Neverthe­ less, on several occasions Frankfurter's contacts in the executive branch proved useful. During the war, for instance, Brandeis used Frankfurter to per­ suade Colonel Edward M. House to seek the Justice's advice on the perplexing problems of wartime mobilization. 113 The Colonel's re­ quest enabled Brandeis to begin his long memorandum, "You have asked my opinion of the ... War Industry Board and Commit­ tees.... " 114 This advice eventually resulted in the creation of the War Labor Policies Board in 1918. After an intense effort to draft Brandeis to head the Board, the appointment went instead to one of the Justice's friends - Felix Frankfurter.m In 1929 President Hoover established the National Commission on Law Observance and Enforcement to study the entire system of administering criminal justice in the United States. Hoover sent for Brandeis in March to discuss the Commission, and the Justice imme­ diately reported to Frankfurter: "What he needs & so far has failed to think of is a man for chairman - someone, who besides other qualities, can dramatize the situation. If you can think of the right man, wire me." 116 Frankfurter responded over the next few weeks with a series of names for chairman, for members of the Commis­ sion, and for positions on the legal staff. 117 A number of the men proposed by Frankfurter were eventually appointed. The chairman­ ship, however, went to Brandeis's old foe from the Pinchot-Ballinger

112. 304 U.S. 64 (1938). 113. See 13 Edward M. House Diaries 11 (Jan. 9, 1918), Edward M. House Manuscripts, Sterling Library, Yale University, New Haven, Connecticut. 114. Letter to Edward M. House (Jan. 9, 1918), reprinted in IV LETTERS, supra note I, at 332-34. 115. See L. BAKER, supra note 19, at 77-78; A. MASON, supra note 2, at 524-26. 116. Letter to F.F. (Mar. 17, 1929), reprinted in V LETTERS, supra note I, at 374. 117. See the following letters to F.F.: (Mar. 13, 1929), reprinted in V LETTERS, supra note 1, at 372-73; (Apr. 3, 1929), reprinted in V LETTERS, supra note 1, at 375; (Apr. 21, 1929), reprinted in V LETTERS, supra note I, at 377; (Apr. 28, 1929), reprinted in V LETTERS, supra note I, at 378-79. August 1980] Brandeis and Frankfurter 1279 conservation controversy of 1910, former Attorney General George Wickersham. Undeterred, Brandeis wrote a number of suggestions for the investigation and sent them to Frankfurter, to be passed on to Wickersham. 118 Brandeis also availed himself of the opportunity, through Frank­ furter, to lobby a rising star on the political horizon, Franklin D. Roosevelt. Fully aware of the already intimate relationship between Frankfurter and the New York gubernatorial candidate, Brandeis asked the professor to carry a message: "If, as I expect, Roosevelt is elected, I should like through you to put in early two requests: (a) Far reaching attack on 'the Third Degree', (b) Good Counsel in N.Y.'s cases before our Court." 119 After Frankfurter offered to ar­ range a meeting, Brandeis responded that "If I should chance to see Franklin Roosevelt, I should not hesitate to talk with him about my two requests. But I think it entirely unnecessary that I should see him."120 When a conference could not be arranged, Frankfurter presented Brandeis's proposals in person to the Governor-elect. 121 Needless to say; this first triangular discussion of public policy pre­ saged a promising arrangement that would be perfected in the 1930s. Many of the political proposals made by Brandeis and pushed by Frankfurter during this period suffered a similar fate. Although their joint efforts - to defend experiments in social legislation, to limit injunctions against labor, to suggest new federal responsibili­ ties, to reform the judicial system and establish a "brain trust" of progressive intellectuals - were pregnant with possibilities for the future, they achieved little in the short run. The years of war and of conservative Republican leadership were generally unhappy ones for American progressives. Although the progressive impulse never en­ tirely disappeared, 122 and although Brandeis and Frankfurter were at the center of efforts to keep that spirit alive, the accomplishments of the reformers were meager. Brandeis realized that the 1920s offered little but frustration for progressive reform. Everywhere he saw rampant materialism ac­ complishing "the gentle enslavement of our people." 123 "If my his-

118. See, e.g., Letter to F.F. (June 15, 1929), reprinted in V LETTERS, supra note l, at 380- 81. 119. Letter to F.F. (Nov. 4, 1928), quoted in V LETTERS, supra note l, at 364 n.2. 120. Letter to F.F. (Nov. 14, 1928), reprinted in V LETTERS, supra note 1, at 363. 121. See ROOSEVELT AND FRANKFURTER: THEIR CORRESPONDENCE- 1928-1945, 39-40 (M. Freedman ed. 1967). 122. See Link, What Happened lo the Progressive Movement in the 1920's?, 64 AM. HIST. REV. 833, 844-47 (1959). In addition, see the sources cited in note 262 iefra. 123. Letter to F.F. (Nov. 8, 1925), reprinted in V LETTERS, supra note l, at 192-93. 1280 Michigan Law Review [Vol. 78:1252 tory isn't wrong," he wrote to Frankfurter out of the depths of the Coolidge administration, "we are now passing through the first expe­ rience in 50 years of actual retreat in social, political, economic pro­ gress as evidenced by legislation. Heretofore we had times of unrest, and reactionary administrations or reactionary public opinion, but never actual retreat." 124 The Justice's advice to reformers in a time of political "retreat" was twofold. First, he counselled patience. Once, in 1927, when his· brother sent a discouraged report about the lack of progress in the family's attempts to improve the University of Louisville and called into question the Justice's steadfast optimism, Brandeis replied, "When I said our project is 'irresistible,' I didn't mean that obstacles would vanish in the winking·of an eye, and walls tumble before the blowing of the horn." Meaningful reform, he pointed out, required "patience, persistence and tact. But with these, and time, I am con­ vinced there is good reason to expect a worthy achievement." 125 When affairs at the University worsened, he repeated the message: "Don't be discouraged. The future has many good things in store for those who can wait, and have patience and exercise good judg­ ment." 126 The second response that Brandeis recommended, in the face of the anti-reform sentiment of the 1920s, was the relentless, remorse­ less effort to educate the public. As he explained to Frankfurter dur­ ing their campaign to eliminate the practice of domestic espionage: It may take a generation to rid our country of this pest, but I think it probably can be done, if the effort is persistent and we are prepared for action when, in the course of time, 'the day' comes . . . . Knowledge-detailed & put into effective usable forms is the founda­ tion onto which to build. The machinery for collecting the data must be perfected. 127 In short, in a time of political conservatism, the dedicated progres­ sive should be neither discouraged nor idle. While awaiting a better day, the crucial task was to gather social data, put it into "usable forms," and lay it before the public so that when the better day came, reformers would find the public informed, prepared and ready to act.

124. Letter to F.F. (Feb. 26, 1926) (located in the Frankfurter Mss.-LC, supra note 35). 125. Letter to Alfred Brandeis (Jan. 16, 1927), reprinted in V LETTERS, supra note I, at 261- 67._ 126. Letter to Alfred Brandeis (Nov. 29, 1927), reprinted in V LETTERS, supra note I, at 315. 127. Letter to F.F. (June 23, 1926), reprinted in V LETTERS, supra note I, at 224-25. August 1980) Brandeis and Frankfurter 1281

V Brandeis was willing to follow his own advice; and in his per­ sonal efforts to "educate" Americans, he used Felix Frankfurter to the fullest measure. Brandeis felt constrained to confine his own · public remarks to judicial opinions; and he politely declined count­ less invitations to give speeches and interviews. Nevertheless, through Frankfurter, he managed to maintain a running commen­ tary on virtually all aspects of American life. The Harvard profes­ sor's contacts on such liberal organs as the New York World, the Boston Herald, the Nation, and the Survey, opened a vast audience of potentially educable citizens to the Justice. Over the years, Bran­ deis quietly sent Frankfurter scores of suggestions for articles and editorials, and the professor worked diligently, and with remarkable effectiveness, to get a large number·of these ideas before the public. No publication offered Brandeis better opportunities for dissemi­ nating his views than the New Republic. Frankfurter was a trustee for the magazine, and Herbert Croly, the journal's editor, was one of the professor's closest friends. Brandeis especially valued this con­ nection because of the New Republic's enormous infiuence. 128 Not content merely with sending Frankfurter dozens of suggestions for articles, the Justice kept a close watch on the magazine's editorial philosophy, and occasionally even attempted to define its general di­ rection and approach: A. If the N.R. is to justify by its influence & results the sacrifices made for it - it must be - in the period ahead of us - more concrete in its undertakings. B. It must be more a journal of fact-than of opinion; which latter is apt to be regarded as mushy. That is - it tnust make its opinions tell through facts, which by their selection & method of presentation argue themselves. And in the end, facts must be presented stripped for ac­ tion. C. Its task of improving affairs must be accomplished by directing thought, & propelling influence persistently against specific evils. 129 Later, when Croly announced three special issues - one on educa­ tion, another on the teaching of English literature, and a fall literary number - Brandeis exploded. ''The editor," he told Frankfurter, "must seek to hold the readers' interest, not by diversions, but by skillful presentation of the varieties of experience of the pilgrims plodding the weary way." He was annoyed by the New Republic's apparent lack of direction: ''The pathfinder must possess and exer-

128. For the development of the New Republic see C. FoRCEY, THE CROSSROADS OF LIB­ ERALISM: CROLY, WEYL, LIPPMANN AND THE PROGRESSIVE ERA, 1900-1925 (1961). 129. Letter to F.F. (Dec. 1, 1920), reprinted in IV LETTERS, supra note 1, at 514-15. 1282 Michigan Law Review [Vol. 78:1252

cise insight, judgment, decision. There must be neither deviation nor dissipation, no pleasing 'abstecher' [excursions] to explore interesting ruins, to gather rare flowers, or even to kill a noxious animal . . . . Every article must follow the same general direction. And the direc­ tion must be pursued without change."130 Thus, Brandeis was more than just an anonymous contributor to the New Republic; he was very nearly a member of its editorial staff, in absentia. And like the other editors, Brandeis poured forth his suggestions for the journal - but he poured them forth through Fe­ lix Frankfurter. Between September 4 and October 2, 1922, for in­ stance, Brandeis sent Frankfurter his "last will and testament" before submerging himself in the work of the Court for the coming October term. The documents were extensive memoranda on issues that Brandeis thought merited serious editorial treatment by the New Republic: prohibition, capitalism, transportation, labor-saving de­ vices, general economic problems. 131 Although he told Frankfurter that the exercise was merely to "clarify my own mind as to what was desirable," and that therefore he was not sending his ideas directly to Croly, nevertheless, "[i]f, and so far as, you may deem the views ex­ pressed valuable and you have the opportunity to present them per­ sonally at any meeting of the N.R. board . . ., I have of course no objection to your doing whatever your judgment dictates." 132 Natu­ rally, Frankfurter wasted little time in bringing the sheaf of papers to Croly's attention; and soon the ideas contained in Brandeis's letters began appearing in print. For example, Brandeis's comment to Frankfurter that "the N.R. should not let Sec[retar]y [of Labor, James J.] Davis' idea of normalcy - 1,500,000 unemployed & 1,500,000 part employed - pass unnoticed," was translated, three weeks later, into the New Republic editorial" 'Normalcy' in Unem­ ployment."133 Another of Brandeis's memoranda - proposing a plan for preventing debilitating coal and rail strikes - was pub­ lished in the New Republic as an unsigned article. 134 In the following years, Brandeis maintained a rapid-fire diagno-

130. Letter to F.F. (Sept. 6, 1922), reprinted in V LETTERS, supra note 1, at 62-63. 131. Seethe following letters to F.F.: (Sept. 4, 1922), reprinted in V LETTERS, supra note 1, at 59; (Sept. 24, 1922), reprinted in V LETTERS, supra note 1, at 64; (Sept. 25, 1922), reprinted in V LETTERS, supra note 1, at 65; (Sept. 30, 1922), reprinted in V LETTERS, supra note 1, at 65-71. 132. Letter to F.F. (Oct. 2, 1922), reprinted in V LETTERS, supra note 1, at 71-72. 133. For L.D.B.'s comment, see Letter to F.F. (Sept. 15, 1922) (located in the Frankfurter Mss.-LC, supra note 35); for the journal's editorial, see "Normalcy" in Unemployment, 32 NEW REPUBLIC 163 (1922), 134. For L.D.B.'s suggestion, see Letter to F.F. (Sept. 4, 1922), reprinted in V LETTERS, supra note 1, at 59-62; for the journal's version of the letter, see What to J)o, 32 NEW REPUB• LIC 136 (1922), August 1980) Brandeis and Frankfurter 1283 sis of daily events, together with suggestions to Frankfurter of topics that might be-worthy of treatment in one or more of the liberal peri­ odicals. During the debate over the Judiciary Act of 1925, for exam­ ple, Brandeis wrote out his personal reflections on the work of the Supreme Court; those reflections, closely paraphrased, appeared in the February 25, 1925 issue of the New Republic. 135 Similarly, Bran­ deis urged Frankfurter to press his journalist friends to publish the Justice's analyses of the 1924 Immigration Act, 136 the McNary-Hau­ gen bill on agricultural surpluses, 137 the character of Charles Lindbergh, 138 the stubborn silence of Coolidge on the Teapot Dome scandal, 139 and the high quality of Hoover's new Attorney Gen­ eral.140 Through Frankfurter Brandeis also suggested articles or edi­ torials on the plight of the impoverished farmers, 141 the danger of big money influencing the Pennsylvania elections, 142 the inaccuracy of government unemployment figures, 143 and the need for lifting the morale of presidential candidate Al Smith's supporters. 144 Since many of Brandeis's ideas for liberal periodicals required additional research, he often contented himself with the suggestiop. and let Frankfurter choose the author. But sometimes Brandeis had ideas about who the author should be: Wouldn't it be worthwhile (ifW.D. Lane is not already writing for the Nation) that V[illard, editor of the Nation] get him to write. The Na­ tion, the N.R. & the Survey ought to avail of his knowledge of the coal problem already acquired, & make it possible for him to develop the authority on the subject & see it through. It's a long pull. But we need such experts on fundamental problems and there ought to be such co­ operation of publications. 145 Three months later, the Survey did begin,a three-part series by Win-

135. L.D.B. suggested that the Supreme Coun remained esteemed because its workload had been kept to one which nine men could handle. See Letter to F.F. (Feb. 6, 1925), reprinted in V LETTERS, supra note 1, at 160. The journal's paraphrase appears at 42 NEW REPUBLIC 3- 4 (1925). 136. See Letter to F.F. (June 3, 1924), reprinted in V LETTERS, supra note 1, at 131-32. 137. See Letter to F.F. (Dec. 5, 1926), reprinted in V LETTERS, supra note 1, at 251. 138. See Letter to F.F. (May 25, 1927), reprinted in V LETTERS, supra note 1, at 287-88. 139. See Letter to F.F. (Mar. 4, 1928), reprinted in V LETTERS, supra note 1, at 326-28. 140. See Letter to F.F. (Mar. 1, 1929), reprinted in V LETTERS, supra note 1, at 370-71. L.D.B.'s praise of that Attorney General, William D. Mitchell, was incorporated in an edito­ rial, A Fine Appointment, 58 NEW REPUBLIC 84 (Mar. 13, 1929). 141. See Letter to F.F. (Jan. 24, 1926), reprinted in V LETTERS, supra note 1, at 203-05. 142. See Letter to F.F. (June 25, 1926), reprinted in V LETTERS, supra note 1, at 225-26. 143. See Letter to F.F. (Mar. 29, 1928), reprinted in V LETTERS, supra note 1, at 3~3-34. 144. See Letter to F.F. (Sept. 2, 1928), reprinted in V LETTERS, supra note 1, at 352. 145. Letter to F.F. (Nov. 9, 1921), reprinted in V LETTERS, supra note 1, at 30. 1284 Michigan Law Review [Vol. 78:1252 throp Lane on the problems of the coal industry. 146 In a similar fashion, some of the views outlined by Brandeis on tax-exempt se­ curities appeared in a New Republic article on that topic, authored by Edward S. Corwin of Princeton, 147 and Frankfurter himself fol­ lowed up on some of Brandeis's proposals by preparing and signing an article on prohibition.148 Brandeis also suggested to Frankfurter that someone discuss the Coolidge administration's "debauching [of] the judiciary with inexcusable appointments," 149 President Coo­ lidge's handling of the unemployment problem, 150 and the Interstate Commerce Commission's recent railroad rulings. 151 In other suggestions to Frankfurter, Brandeis went beyond sim­ ply proposing a topic for treatment in one of the liberal periodicals. He provided an extensive outline of the analysis he thought should be used in pursuing the idea. For example, after reporting to Frank­ furter that -he had encouraged Charles Merz, then a New Republic staffer, to take up the question of domestic espionage, Brandeis pro­ ceeded to explain to Frankfurter where the data might come from and the point of view the articles should take: If Croly thinks well of this suggestion & the articles - & takes them if written - it seems to me important that the attack on espionage be not confined to industrial espionage. That is merely one bad application of a practice. The fundamental objection to espionage is (1) that espio­ nage demoralizes every human being who participates in or uses the results of espionage; (2) that it takes sweetness & confidence out of life; (3) that it takes away the special manly qualities.of honor & generosity which were marked in Americans. It is like the tipping system an import from Continental Europe & the Near East only a thousand times worse. If Croly takes up the fight for its eradication - the immorality - the ungentlemanliness - should be made the keynote, & not the industrial wrong or infringe­ ment of liberty as in the Red Campaign. It is un-American. It is nasty. It is nauseating. 152 Ten weeks later the New Republic began a seven-part series on the problem of domestic espionage. 153 Other articles Justice Brandeis

146. See Miners in Distress, 41 SURVEY 786 (1922); Breaking the Miners, 41 SURVEY 887 (1922); Black Avalanche, 41 SURVEY 1002 (1922). 147. Compare Letter to F.F. (Jan. 4, 1923), reprinted in V LETTERS, supra note 1, at 83, with Corwin, Tax-Exempt Securities, 33 NEW REPUBLIC 243 (1923). 148. Compare Letter to F.F. (Sept. 25, 1922), reprinted in V LETTERS, supra note 1, at 65, with Frankfurter, What Has Prohibition Done to America?, 32 NEW REPUBLIC 305 (1922). 149. Letter to F.F. (Feb. 22, 1928), reprinted in V LETTERS, supra note 1, at 323-25. 150. See Letter to F.F. (Mar. 29, 1928), reprinted in V LETTERS, supra note 1, at 333-34. 151. See Letter to F.F. (July 21, 1929), reprinted in V LETTERS, supra note 1, at 381. 152. Letter to F.F. (Nov. 26, 1920), reprinted in IV LETTERS, supra note 1, at 510-11 (em­ phasis original). 153. See Howard, The Labor Spy (pts. 1-2), 25 NEW REPUBLIC 338, 362 (1921); id (pts. 3- August 1980] Brandeis and Frankfurter 1285

outlined to Frankfurter covered such diverse topics as the "closed shop,"154 the economic difficulties of the merchant marine, 155 and the deficiencies of Herbert Hoover as Secretary of Commerce. 156 The sheer volume of Brandeis's suggestions for sympathetic newspapers and magazines was staggering. Once, in March, 1921, Croly fell behind in implementing some of Brandeis's ideas, and he sent his regrets to Washington, through Frankfurter. Brandeis re­ plied understandingly: "I am sorry Croly was bothered about sup­ posed delay in acting on suggestions. He must not let himself be hereafter." 157 But before the month was out, Brandeis had fired off to Frankfurter four brand new proposals for Croly to ponder. If Justice Brandeis used Frankfurter to "educate" the general public through the popular press, he also used him to enlighten the legal community. Probably no person in the United States was bet­ ter situated to influence legal opinion than Frankfurter; and Bran­ deis unhesitatingly tapped the professor's boundless energy, his many contacts among leading legal minds, and even the bright young students in his seminars. Again and again Brandeis pointed out legal problems, suggested and even outlined articles, and virtu­ ally collaborated with Frankfurter in encouraging certain lines of discussion in legal journals. And once more, Frankfurter proved himself an effective and tireless conduit for Brandeis's ideas. In the first place, Brandeis discovered that he could amplify his prior judicial opinions through Frankfurter. After his monumental dissent in the Olmstead wiretap case, 158 for example, Brandeis sug­ gested to Frankfurter that "some reviewer . . . will discern that in favor of property the Constitution is liberally construed - in favor

7), 26 NEW REPUBLIC 13, 39, 62, 98, 129 (1921). The series, which later appeared in book form as THE LABOR SPY (1921), was written by Sidney Howard, the man L.D.B. had suggested should be the author. The editor's introduction leaves no doubt as to L.D.B.'s influence: The spy system "is a system based on the negation of honor and good faith in human relationships, and is bound to breed dishonor and bad faith wherever it is introduced.

There is very little room, if any, for private espionage in a republic. It violates every sound tradition and every sound instinct of republican government. For it introduces into the inner circles of western life an attitude of mind that belongs to the intrigue and con­ spiracy of an Oriental court . . . . Loyalty to American ideals is incompatible with this practice. It is 100 per cent un-American." Id at 338. 154. See Letter to F.F. (Nov. 26, 1920), reprinted in IV LETTERS, supra note 1, at 510-11. 155. Compare Letter to F.F. (Sept. 20, 1921), reprinted in V LETTERS, supra note 1, at 15, with Clapp, The American Transportation System, 30 NEW REPUBLIC 72-75 (Mar. 15, 1922). 156. See Letter to F.F. (May 20, 1923), reprinted in V LETTERS, supra note 1, at 95-96; Letter to F.F. (Jan. 6, 1926), reprinted in V LETTERS, supra note 1, at 199. 157. Letter to F.F. (Mar. 2, 1921), reprinted in IV LETTERS, supra note 1, at 537-38. 158. Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting). 1286 Michigan Law Review [Vol. 78:1252 of liberty, strictly."159 On another occasion, after he had joined Holmes in dissent, Brandeis advised Frankfurter: "In connection with the Craig Contempt case, this point arising incidentally should receive separate treatment. The absurdity of the running of a munic­ ipal utility being committed for years to a Federal Court, in a state which is the financial center of America & where probably nearly all the utility's securities are held." 160 In one instance, when Brandeis joined the majority in striking down a federal child labor law, 161 he hastened to explain to Frankfurter how the decision should be inter­ preted: The N[ew]. R[epublic]., The Survey & like periodicals should not be permitted to misunderstand yesterday's decisions on the Child Labor and Board of Tradel1621 cases & should be made to see that holding these [acts] invalid is wholly unlike holding invalid the ordinary wel­ fare legislation. That is that we here deal (I) with the distribution of functions between State & Federal Governments [and] (2) with the at­ tempt at dishonest use of the taxing power. 163 Through Frankfurter, Brandeis also launched a concerted attack on the Supreme Court's ·use ofper curiam opinions and opinionless de­ nials of certiorari. Brandeis strongly believed that the Court had an obligation to issue brief, separate opinions when employing those ju­ dicial devices, and he detested the Court's long tradition of magiste­ rial silence in such cases. One weapon against the silence was to attempt to speak through Frankfurter's access to the influential Harvard Law Review. In October, 1926, for example, Brandeis wrote Frankfurter: The JILR should not miss, or fail to treat adequately No. 230, Indus­ trial Com[missio]n v. Terry & Tench Co., in which we reversed N.Y. C[ourt of]. A[ppeals]. (Cardozo) in a P.C. - !! The significance of the decision, in connection with some other recent ones on the same gen­ eral subject might be made clear.164 The appropriate note soon appeared in the Review. 165 Six months later, Brandeis alerted Frankfurter that "in June or Nov. [issue of the Harvard Law Review] there should be an expansive note - or an

159. Letter to F.F. (June 15, 1928), reprinted in V LETTERS, supra note 1, at 344-45. 160. Letter to F.F. (Nov. 20, 1923), reprinted in V LETTERS, supra note 1, at 104-06. The case was Craig v. Hecht, 263 U.S. 255 (1923). 161. Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). 162. Hill v. Wallace, 259 U.S. 44 (1922). 163. Letter to F.F. (May 16, 1922), reprinted in V LETTERS, supra note 1, at 53 n.3. 164. Letter to F.F. (Oct. 15, 1926), reprinted in V LETTERS, supra note 1, at 235-36. The case was State Indus. Bd. of New York v. Terry & Tench Co., 273 U.S. 639 (1926). 165. 40 HARV. L. REV. 485 (1927). August 1980) Brandeis and Frankfurter 1287 article apropos P.C. in Pinkerton Case." 166 Similarly, in December, 1927, a disgusted Brandeis complained to Frankfurter that "[a]mong yesterday's shower of P.C.s are several worthy of H.L.R. notes - and one, Standard Oil Co. v. City of Lincoln, which should be blazoned in an article." 167 Brandeis registered objections to the Court's per curiam and certi­ orari practices by having Frankfurter arrange not only commentary on some of the cases, but also an article directly criticizing the prac­ tices. To insure that the professor would obtain necessary data, Brandeis directed his clerk "to send . . . from time to time instances of P.C.'s & of Certs granted or denied that deserve study." 168 Begin­ ning in July, 1927, Brandeis began pushing for a general article on each problem: "The subject of Certiorari, and of Per Curiams ought to get full treatment after intensive study. These should be treated each in a separate article when the time comes. Possibly some of your students may as a result of this year's seminar be able to take up the matter."169 Brandeis waited three more months before raising the issue again: "Some day you must have an article in H.L.R. re­ viewing the Cert. work since Feb 13 1925 act, and another article on the P.C.'s."17° Finally, in 1928, Frankfurter and James M. Landis published "The Supreme Court Under the Judiciary Act of 1925" in the Harvard Law Review. 171 And in early 1929, Frankfurter in­ cluded revealing statistics in his annual review of the Supreme Court's work. 172 But rather than satisfying Brandeis, these articles merely whetted the Justice's appetite for more thorough studies of per curiam and certiorari practices. In praising Frankfurter's review of the 1928 Term, Brandeis revealed both his dogged persistence and his true purpose - educating his fellow judges: October Term 28 Business [of the Supreme Court] is grand. If any of my brethren read it thoughtfully, they will find many problems to be solved. I hope that, with your enlarged numbers in the Seminar, you will be able to have made or started the comprehensive studies of Per

166. Letter to F.F. (Apr. 20, 1927) (located in Frankfurter Mss.-LC, supra note 35). The case was Pinkerton v. Wengert, 274 U.S. 712 (1927). 167. Letter to F.F. (Dec. 6, 1927), reprinted in V LETTERS, supra note 1, at 315-16. The case was Standard Oil Co. v. City of Lincoln, 275 U.S. 504 (1927). For the arguments, see 114 Neb. 243, 207 N.W. 172 (1926). The case was discussed briefly at 41 HARV. L. REv. 777-78 (1928). 168. Letter to F.F. (Nov. 13, 1927), reprinted in V LETTERS, supra note l, at 309-10. 169. Letter to F.F. (July 29, 1927) (located in Frankfurter Mss.-LC, supra note 35). 170. Letter to F.F. (Oct. 29, 1927), reprinted in V LETTERS, supra note 1, at 305-06. 171. 42 HARV. L. R.E.v. l (1928). 172. See Frankfurter, :17re Business ofthe Supreme Court at October Term, 1928, 43 HARv. L. REV. 33 (1929). 1288 Michigan Law Review [Vol. 78:1252

Curs. and of Certs. In connection with the former, consideration should be from what the form of P.C. should be - obviously, more should be said than at present. And consideration should also be given as to whether-the reasons for denial of a Cert. should not be stated in general terms. 173 Brandeis by no means confined his requests for legal articles to the problems •of per curiam and certiorari practices. He flung his ideas at Frankfurter, sometimes two or three at a time: I. [I]t would be well to have made clear to the states, how they could avoid in tax cases the enjoining of their tax collections through suits in federal court - by removing the possibility of the claim there is no adequate remedy in the state courts, if the tax is paid etc. There ought to be a whole article devoted to this subject, so that even those who need the Kindergarten course could understand. And copies of the [Harvard Law] Review should go to the high state taxing officials & the Att[ome ]ys General etc. 2. I think there ought to be worked out also an article showing how, by appropriate changes in state criminal administration, the excuse for going into federal Equity courts for injunction because of claim of ir­ reparable damage, ~ue to multiplicity of suits & oppressive penalties, before the final adjudication of validity, could be obviated. 3. By careful work on these & cognate lines, with state cooperation which seems now procurable, the whole illegitimate brood of such re­ sorts to equity & the federal courts could be stamped out. 4. In 87 etc.P74J I have endeavored to make clear, as a matter of stat­ utory construction the 'occupying the field' doctrine. I think the states could be taught, by a similar ABC article that, if they wish to preserve their police power, they should, through the 'state block' in Congress, see to it in every class of Congressional legislation that the state rights which they desire to preserve be expressly provided for in the acts. 175 Brandeis also asked Frankfurter to write about the abuses of the "contempt of court" power, 176 about the heavy reversals against the 2nd and 8th Circuit Courts, 177 and about other legal topics as well. Brandeis also used Frankfurter to protest the flooding of the Court's dockets with what he viewed as spurious cases: I am inclined to think that the most copious & futile of the single wastes of our Court's efforts have been in the Federal Liability Cases both (a) before the Sept 6, 1916 Act, on writ of error and (b) since, in granting certioraris. It might be worthwhile to put one of your juris­ diction sharps on that enquiry.178

173. Letter to F.F. (Dec. 21, 1929) (located in Frankfurter Mss.-LC, supra note 35). 174. Napier v. Atlantic Coast Line R.R., 272 U.S. 605 (1926). 175. Letter to F.F. (Nov. 30, 1926), reprinted in V LETTERS, supra note I, at 247-48. 116. See Letter to F.F. (Aug. 15, 1926) (located in Frankfurter Mss.-LC, supra note 35). 111. See Letter to F.F. (June 2, 1927), reprinted in V LETTERS, supra note I, at 290. 178. Letter to F.F. (May 2, 1926), reprinted in V LETTERS, supra note I, at 221. August 1980) Brandeis and Frankfurter 1289

The Justice objected to the Court's practice under federal law of re:­ examining the decisions from the states' highest courts in this area. Frankfurter was unable to take up the issue speedily, and Brandeis grew more insistent: "I hope next year your Seminar will produce an article demonstrating the futility of our Grants of Certiorari's in Federal Em[ployer]. Liability Cases (1916-1927 Terms)." 179 Fi­ nally, Frankfurter included the statistics that demonstrated the point in his annual review article in the Harvard Law Review. The profes­ sor's statement that "[w]ithout undue dogmatism, it may be asserted that petitions for certiorari see~g review of Federal Employers' Li­ ability cases are too readily granted,"180 was backed by even greater authority than his readers could have suspected. Not even as prolific a writer as Felix Frankfurter could alone have kept up with Brandeis's suggestions for legal articles; and the professor regularly passed particular ideas on to other writers and scholars. In this way, Charles Warren came to discuss early Ameri­ can attempts to amend the Constitution.181 Similarly, in his book, The Investor Pays, Max Lowenthal, a former Frankfurter student, dealt with some of the questions surrounding court patronage in the appointment of receivers in bankruptcy proceedings - an idea ini­ tially suggested by Brandeis to Frankfurter. 182 Frankfurter also re­ layed Brandeis's helpful bits of information or suggestions to aid the legal work and writing of such men as Thomas R. Powell, C.C. Bur­ lingham, Emory Buckner, Augustus Hand and Cuthbert Pound. 183 Often Brandeis simply spelled out an idea and offered a general suggestion to Frankfurter about what sort of an author should pur­ sue the topic. During the Sacco-Vanzetti case, for example, Brandeis suggested that Frankfurter put "the appropriate man" on a study of the pardoning power in America, 184 and "some one with the compe­ tence" to collect American causes ce/ebres. 185 He also proposed that Frankfurter locate "[s]ome political science man with a historical sense & style" to compare Prussia and Massachusetts in the area of

179. Letter to F.F. (Mar. 16, 1928), reprinted in V LETTERS, supra note I, at 329-30. 180. See Frankfurter, supra note 172, at 52 (1929). 181. For L.D.B.'s original suggestion, see Letter to F.F. (June 16, 1922), reprinted in V LETTERS, supra note I, at 52-53. For Warren's address to the Massachusetts Bar Association, see Warren, The Early History of the Supreme Court of the United States in Connection with Modern Attacks on the Judiciary, MAss. L. Q., Dec., 1922, at I. 182. See Letter to F.F. (July 14, 1928), reprinted in V LETTERS, supra note I, at 348. 183. See, e.g., Letter to F.F. (Jan. IO, 1926), reprinted in V LETTERS, supra note I, _at 200- 01; Letter to F.F. (Jan. 24, 1926), reprinted in V LETTERS, supra note I, at.203-05. 184. Letter to F.F. (July 28, 1927), reprinted in V LETTERS, supra note I, at 297-98. 185. Id. 1290 Michigan Law Review (Vol. 78:1252 municipal authority, 186 and "some economist & government men" to examine the tax status of philanthropic foundations. 187 "Couldn't you get started through your men a series for the HLR covering the danger of arbitrariness etc. in the several federal Depts & Bureaus?," Brandeis wrote in June, 1926.188 On another occasion, he suggested that "one of your seminars" might examine the possibility of estab­ lishing "official reviewers" to avoid patronage and ease the duties of judges.189 But Brandeis also often suggested particular writers by name, leaving to Frankfurter the job of pursuing the assignment with the designated author. He asked Frankfurter to get James M. Landis to write an article for the Harvard Law Review on the Jurisdiction Act of 1925, 190 and he asked Frankfurter to collaborate with Henry J. Friendly and Landis in an exploration of the business of the lower federal courts. 191 He proposed H.L. Shattuck for a taxation ques­ tion.192 On June 23, 1926, he suggested that Frankfurter get two Harvard Law School professors - John M. Maguire and Edmund M. Morgan - to analyze the problem of domestic espionage by pub­ lic servants. 193 Two days later, Brandeis suggested that Harvard professors Francis H. Bohlen and John Dickinson write articles in the Harvard Law Review "bearing on the redress for the invasion of civil and political rights through arbitrary etc. governmental action, by means of civil suits."194 One of Brandeis's most successful efforts to educate the legal community grew out of his attempts to convince congressional progressives to curtail federal court jurisdiction. 195 The Justice flooded Frankfurter with ideas to develop: Re curtailing jurisdiction on ground[s] of diversity of citizenship. Why should a plaintiff ever be permitted to sue in a federal court of the District of which he is a citizen & resident? Why should he be entitled to sue an alien in a federal court? Why should a consolidated & do­ mesticated corporation ever have a right (under the diversity of citizen-

186. Letter to F.F. (Jan. 24, 1926), reprinted in V LETTERS, supra note I, at 203-05. 187. Letter to F.F. (Dec. 21, 1926), reprinted in V LETTERS, supra note I, at 255. 188. Letter to F.F. (June 22, 1926), reprinted in V LETTERS, supra note I, at 224. 189. Letter to F.F. (July 14, 1928), reprinted in V LETTERS, supra note I, at 348. 190. See Letter to F.F. (Mar. 8, 1925) (located in Frankfurter Mss.-LC, supra note 35); Frankfurter & Landis, The Business ofthe Supreme Court ofthe United States -A Study in the Federal Judicial System: Part VIL The Judiciary Act of192.5, 40 HARV. L. REV. 834 (1927). 191. See Letter to F.F. (May 11, 1927) (located in Frankfurter Mss.-LC, supra note 35). 192. See Letter to F.F. (May 13, 1925), reprinted in V LETTERS, supra note I, at 171-72. 193, See Letter to F.F. (June 23, 1926), reprinted in V LETTERS, supra note I, at 224-25. 194. Letter to F.F. (June 25, 1926), reprinted in V LETTERS, supra note I, at 226-27. 195. See notes 100-12 supra and accompanying text. August 1980] Brandeis and Franifurter 1291

ship provision) to enter or removed [sic] to the federal court? 196 Ten months later, Brandeis expanded on these questions in another letter to Frankfurter: With the rising tide against overloading federal courts, would it not be well to make some preparatory move toward reducing the civil juris­ dictions? I suppose diversity of citizenship can't be wholly gotten rid of, in ordinary cases, but some nibbling might be done. How would it do to try to increase the limit from $3000 to $6000, or even higher? To take away removal in suits of shippers under interstate com[merce]. laws (So. Pacific v. Stewart 245 U.S. 359, 362), similar to provision in Employer's Liability Act? Or even to further take away original juris­ diction? To reduce jurisdiction re national banks? Nibbling would do a lot of good, if persisted in.197 Obviously, the Justice was seeking a forum beyond that presented by his impassioned dissents in cases like Black & 'White Taxi Co. 198 Finally, Frankfurter put his Federal Jurisdiction semi­ nar on the problem and produced two articles which fully explored the area.199 The articles persuasively advocated the legislation that Senators Norris and Walsh had introduced and that Brandeis and Frankfurter had indirectly drafted.200 The circle was completed in 1938, when Brandeis, writing for the majority in Erie v. Tompkins, cited one of the articles written by Frankfurter.201 Thus Brandeis had influenced the content of articles in law journals to support a law which he and Frankfurter supported, and then used those arti­ cles to help persuade his colleagues on the Court to overturn the disfavored common-law rule. It was a classic example of how Bran­ deis's public "education" program was supposed to work.

VI Inspiring articles in law journals was one way that Brandeis used Frankfurter to enlighten and to school the American legal commu­ nity. But Brandeis was not content solely to leave his imprint on the

196. Letter to F.F. (Apr. 2, 1925), reprinted in V LETTERS, supra note l, at 170. 197. Letter to F.F. (Feb. l, 1926) (located in the Frankfurter Mss.-LC, supra note 35). 198. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518,532 (1928) (Brandeis, J., dissenting). See note 104 supra and accompanying text. 199. See Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 CORNELL L.Q. 499 (1928); Frankfurter, Distribution of Judicial Power Between Courts of the United States and Courts of the States, 99 N.J. BAR AssN. J. 128 (1928). 200. See notes 106-09 supra and accompanying text. 201. 304 U.S. 64, 73 (1938). On the general question of the weapons available for influenc­ ing policy, see w. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964). (The authors are grateful, in this connection, for suggestions from Professor James Eisenstein). For more on the public policy work of L.D.B. and F.F., see B. MURPHY, JUSTICES AS POLITICIANS: THE Ex­ TRAJUDICIAL ACTIVITIES OF JUSTICES Lours D. BRANDEIS AND FELIX FRANKFURTER (publi­ cation forthcoming). 1292 Michigan Law Review [Vol. 78:1252 current generation of lawyers and judges. He understood that per­ manent reform required long-range efforts that would touch future generations of lawyers. For that reason he embarked upon some major efforts to improve the quality oflegal education in the United States.202 And once again Felix Frankfurter proved himself an in­ valuable lieutenant. Brandeis's interest in legal education long antedated his associa­ tion with Frankfurter. Indeed, Brandeis offered a course at Harvard Law School during the year that Frankfurter was born. His early article, "The Harvard Law School," filled with warm praise of the educational system which he had so recently experienced firsthand, appeared when Frankfurter was only six years old.203 Brandeis's re­ lations with his alma mater had always been intimate. He helped found the Harvard Law School Association in 1886 and the Harvard Law Review in 1887. For many years he served as secretary of the Association and treasurer of the Review. Brandeis was a member of the Committee of Visitors to the Law School for a quarter of a cen­ tury up to 1916 and, in that capacity, suggested curriculum changes and even evaluated instruction. 204 His solicitude for Harvard did not flag after 1916. With Frank­ furter a member of the faculty, Brandeis kept well informed about developments at the school. He was well versed in the internal polit­ ics of the faculty. He knew the names of the brightest students. Oc­ casionally, he even scrutinized copies of Frankfurter's seminar papers and final examinations. "The examination papers are inter­ esting," he once wrote Frankfurter. "Perhaps it is fortunate that we [judges] don't have to pass annual exams."205 One of Professor Frankfurter's most important services to Bran­ deis was to select each year a promising Harvard graduate to serve as Brandeis's law clerk. Brandeis specifically asked Frankfurter to send him young men who planned to pursue careers in legal education. "[O]ther things being equal," he instructed, "it is always preferable to take some one whom there is reason to believe will become a law teacher."206 Among the clerks Frankfurter sent, many became dis­ tinguished teachers. And Brandeis always felt regret about those who did not: "The satisfaction I had in having [Robert] Page and

202. See Urofsky, Louis JJ. Brandeis on Legal Education, 22 AM. J. LEGAL HIST, 189 (1978). 203. Brandeis, The Harvard Low School, GREEN BAO 10 (1889). 204. See Landis, supra note 41. 205. Letter to F.F. (June 16, 1922), reprinted in V LETTERS, supra note I, at 52-53. 206. Letter to F.F. (Jan. 28, 1928), reprinted in V LETTERS, supra note 1, at 319-20. August 1980] Brandeis and Franlifurter 1293

[Henry J.] Friendly with me is a good deal mitigated by the thought of their present activities." Both men had rejected teaching for pri­ vate practice. There was still hope, however, that Friendly "may re­ form and leave his occupation."207 Brandeis harbored a vision of what Harvard Law School should be, and he tried, through Frankfurter, to bring that vision into real­ ity. His picture was spawned in part by his own happy remembrance of the School and in part by his general hatred of "the curse of big­ ness." He desperately wanted to keep Harvard Law School small, the way he remembered it; and that desire put him directly athwart the ambitions of Dean Roscoe Pound, who, like many another ad­ ministrator, viewed expansion as a measure of success. When Dean Pound publicly presented his expansion plans in 1924, Brandeis po­ litely registered "grave apprehensions." He told Frankfurter that there should be "frank recognition of the fact that numbers in excess of 1000, and the proposed 350 seats lecture halls & lectures, are irrec­ oncilable with H.L.S. traditions & aims."208 And when Frankfurter moved to head off Pound's plans, Brandeis laid out the strategy in detail: As to method of limitations: I think there should be strong insis­ tence that in consideration of the subject, the questions should be defi­ nitely segregated: (a) whether limitation to, say, 1000 is desirable. (b) if so, the mind of man may be then put solely upon devising or selecting the best, or least objectionable means. (c) if not, the mind should proceed to devise the means which will make numbers least harmful.

I have no definite views as to methods of selection. A field for wide research & inventive thought is open. A few things seem clear: (a) Limitations must not be effected by raising tuition fees. (b) The method must ensure national representation, geographi­ cally & in respect to colleges. (c) Provision must be made for star men (undergraduates) of other law schools. ( d) Provision must be made for teachers of or those definitely pre­ paring for teaching at other law schools.209 Brandeis also urged Frankfurter to press upon Harvard a mission better than reckless expansion. Brandeis proposed that Harvard should become a beacon of enlightenment to the nation's other law

207. Letter to F.F. (Oct. 13, 1929), reprinted in V LETTERS, ,supra note 1, at 403-04. 208. Letter to F.F. (Oct. 9, 1924), reprinted in V LETTERS, supra note 1, at 143-44. 209. Letter to F.F. (Oct. 25, 1924), reprinted in V LETTERS, supra note 1, at 146-47. 1294 Michigan Law Review [Vol. 78:1252 schools. He presented Frankfurter with the details of his alternative plan: [M]ake frank avowal of a purpose to aid in building up the lesser schools. Then aid in placing H.L.S. resources at their disposal so far as possible, i.a., create a new kind of exchange-professorships - i.e., H.L.S. professors who will go out, as legates, temporarily to aid in de­ veloping lesser schools & there teach and take in exchange the local professors who shall come for a year or so to H.L.S. to learn. Also arrange that picked students from such lesser schools may enter, not only postgraduate H.L.S. classes, but the higher undergradu­ ate classes. Of course, I see the difficulties of putting such an alterna­ tive scheme into operation. But it is 'constructive - not destructive.' Be the mother church for the new & worthy legal education & legisla­ tion. 210 Brandeis then reported regularly to Frankfurter about his efforts to spread his views among other Harvard alumni: Oliver Wendell Holmes, Edward T. Sanford, Augustus Hand, and Julian Mack. Re­ garding Mack, Brandeis reported, "Told him I wanted not a bigger H.L.S., but 20 Harvard Law Schools . . . ."211 But Brandeis's interest in Harvard was never confined merely to criticizing plans to make it bigger. He was full of suggestions to Frankfurter for improving the educational process, and he was will­ ing to back his suggestions with financial contributions. He pro­ posed a comprehensive index to the Harvard Law Review and offered to help finance the project.212 l-Ie proposed a far-reaching reform of the moot court system. 213 In April, 1922, Brandeis sug­ gested a new course in federal procedure, and Frankfurter intro­ duced it in the fall of 1924. A few years later Brandeis provided a special fellowship to fund the preparation of a case book for the course.214 For fifteen years after 1924, Brandeis gave generously to the support of a post-graduate fellowship for students to work with Frankfurter.215 And when Pound and Frankfurter developed a plan for two new professorships at the Law School, Brandeis consulted Frankfurter about the plan and then promptly pledged $10,000 to

210. Letter to F.F. (Oct. 9, 1924), reprinted in V LETTERS, supra note l, at 143-44. 211. Letter to F.F. (Jan. l, 1925), reprinted in V LETTERS, supra note l, at 155-56, 212. See Letter to F.F. (Feb. 3, 1922), reprinted in V LETTERS, supra note I, at 43-44. 213. See Letter to F.F. (Jan. 29, 1922) (located in the Frankfurter Mss.-HLS, supra note 76. 214. See Letter to F.F. (Apr. 2, 1922), reprinted in V LETTERS, supra note l, at 48; Letter to F.F. (Apr. 6, 1923), reprinted in V LETTERS, supra note l, at 90; Letter to F.F. (Mar. 6, 1929), reprinted in V LETTERS, supra note l, at 371-72; Letter to F.F. (Sept. 20, 1929), reprinted in V LETTERS supra note l, at 385-87. 215. See Landis, supra note 41, at 189. August 1980] Brandeis and Frankfurter 1295

help fund it.216 It was no wonder that, on the Justice's seventieth birthday, friends could think of no gift that would please him more than a $50,000 endowment to the Harvard Law School to establish the Brandeis Research Fellowship. Two weeks after the gift was an­ nounced, Brandeis wrote to Frankfurter that he expected to be asked to suggest suitable projects for the fund: "If I am," he warned the professor, "I shall submit them to you for consideration before send­ ing anything in."217 Because Brandeis wanted to see "20 Harvard Law Schools," rather than a single enormous one, he tried to help create another one in Louisville, Kentucky. During the 1920s Brandeis took an ac­ tive interest in building a first-rate university in his old hometown.218 Most of the labor he assigned to his brother Alfred and to members of Alfred's family. When it came to the law school at Louisville, however, Brandeis turned to Frankfurter. "Please find out, when you conveniently can, about what, if anything, could be done with & for the Law School of Louisville University (in a modest way)," he began in October, 1924. "I should like to help, if there seems prom­ ise."219 After early discussions with Frankfurter on how to improve the school, the two men settled on Robert N. Miller, one of Frank­ furter's Harvard classmates, to supervise the day-to-day operations. Brandeis continued to consult with Frankfurter on large questions of policy regarding Louisville, and after a long conference with Miller and University of Louisville president Arthur Y. Ford, Brandeis re­ ported to Frankfurter, "I have made it clear to both that you are the Supreme Adviser, & that Miller comes through you."220 In addition to his activities on behalf of the law schools at Harvard and Louisville, Brandeis also worked through Frankfurter to encourage bright young men to enter careers as professors of law. Again and again he encouraged Frankfurter to guide promising stu­ dents into teaching: "Had you thought of making an attempt now to start Malcolm Sharp at teaching law somewhere?"221 "If [Nathan R.] M[argold]. concludes not to remain at Harvard, dont [sic] let him tie himself up with an agreement to return to practice, until I shall have had an opportunity to suggest his name for a teaching job I

216. See Letter to F.F. (Dec. 19, 1922), reprinted in V LETTERS, supra note l, at 80. 217. Letter to F.F. (Nov. 30, 1926), reprinted in V LETTERS, supra note l, at 247-48. 218. See B. FLEXNER, MR. JUSTICE BRANDEIS AND THE UNIVERSITY OF LOUISVILLE (1938). ' 219. Letter to F.F. (Oct. 18, 1924) (located in the Frankfurter Mss.-HLS, supra note 76). 220. Letter to F.F. (June 2, 1925), reprinted in V LETTERS, supra note l, at 174-75. 221. Letter to F.F. (Jan. l, 1925), reprinted in V LETTERS, supra note l, at 155-56. 1296 Michigan Law Review [Vol. 78:1252 have in mind. (Not Louisville)."222 "My impression is that [Harry] Shulman is too good in mind, temper, and aspirations to waste on a New York or other law offices .... Can't you land him somewhere in a law school next fall? You will recall that Yale needs men; and [Prof. Walton H.] Hamilton thinks that the right man there would find no opposition on the score of anti-Semitism."223 In fact, Bran­ deis was perfectly willing to raise his occasional efforts to a general principle: "[I]f ever you have a first class man available whom H.L.S. wont [sic] take," he instructed Frankfurter, "let me know. I may find him a desirable berth in some other law school."224 At one point, however, Brandeis felt compelled to draw the line. Building up the other law schools was fine; but not if it meant Harvard's losing Frankfurter. In 1929, Yale was considering an offer to Frankfurter. Brandeis intervened directly, decisively, and without hesitation. He reported to Frankfurter that he had informed Walton Hamilton that he thought "a serious wrong" would be done if Frankfurter were lured from Harvard: "Yale L.S. should be helped & encouraged in its commendable efforts - but not by weakening the going concern at Cambridge."225 Short-circuiting Yale's over­ tures to Frankfurter without consulting him was, of course, a re­ markable thing for Brandeis to do. Under normal circumstances it would have been considered bold effrontery. That Brandeis did it, and that he thought nothing of telling Frankfurter, reveals the pri­ macy of Harvard in Brandeis's thinking about legal education. But it also shows a good deal about the relationship that had developed between these two men. By the end of the 1920s, Frankfurter had become a fixture in Brandeis's private and public life. The Justice was entirely content that Frankfurter remain at Harvard and that what Brandeis had called "our joint endeavors through you"226 continue without inter­ ruption. The professor had become indispensable to the Justice, a presence always receptive to suggestions and responsive to instruc­ tions. To some extent, no doubt, Brandeis unconsciously regarded Frankfurter as an alter ego, and, as such, it seemed perfectly appro­ priate to enter into negotiations over a possible new job for his friend. The plain fact was that Brandeis had come to rely on Frank-

222. Letter to F.F. (Feb. 11, 1928), reprinted in V LETTERS, supra note 1, at 322-23. 223. Letter to F.F. (Oct. 13, 1929), reprinted in V LETTERS, supra note 1, at 403-04, 224. Letter to F.F. (Jan. 28, 1928), reprinted in V LETTERS, supra note 1, at 319-20. 225. Letter to F.F. (Feb. 27, 1929) (located in the Frankfurter Mss.-HLS, supra note 76). 226. Letter to F.F. (June 2, 1927), reprinted in V LETTERS, supra note 1, at 290. August 1980] Brandeis and Frankfurter 1297 furter. The professor's energetic responses to Brandeis's requests en­ abled the Justice to perform the duties of a judge without surrendering the social activism which was so much a part of him. Through Felix Frankfurter, Brandeis could still participate in vital movements and important reform efforts. In supporting Zionism, in defending social legislation, in drafting new laws, in reforming judi­ cial procedures, in shaping public opinion, and in helping to im­ prove legal education, Brandeis made unst~ting use of the professor. But even that enormous range of responsibilities did not exhaust Frankfurter's capacity. And the Justice could think of many other tasks for the professor to undertake. VII Over the years, Brandeis bombarded Frankfurter with dozens of miscellaneous requests. Many were trivial and easily performed. For example, when Brandeis received inquiries about the location of some quotation of his, he asked Frankfurter to discover the source.227 Brandeis requested Frankfurter's aid in preparing a new edition of his collection of articles, Business-A Profession (1914); when the edition went to press in 1925, it was Frankfurter who had written the "Supplementary Notes."228 Brandeis asked Frankfurter to help arrange a lecture tour for visiting British diplomat Rennie Smith,229 to help find a job for Ray Stevens,230 to get George S. Knapp, editor of Labor, involved in Al Smith's campaign,231 and to provide advice on philanthropic matters.232 In 1925 he wrote Frank­ furter about his daughter's engagement: "Will you kindly send Alice a list of any persons (and addresses) here or abroad, whom you or Marion think we might be likely to forget in making up our list for

227. See, e.g., Letter to F.F. (Jan. 26, 1926), reprinted in V LETTERS, supra note 1, at 205- 06; Letter to F.F. (July 28, 1927), reprinted in V LETTERS, supra note 1, at 297-98. 228. See Letter to Alice H. Grady (Mar. 5, 1924), reprinted in V LETTERS, supra note 1, at l 19; L. BRANDEIS, BUSINESS - A PROFESSION, at /viii (1925) (Supplementary Notes by F. Frankfurter). 229. See Letter to F.F. (June 28, 1925) (located in the Frankfurter Mss.-HLS, supra note 76). 230. See Letter to F.F. (Oct. 27, 1925) (located in the Frankfurter Mss.-HLS, supra note 76). Ray Stevens had been a one-term Congressman from New Hampshire and had helped to pass President Wilson's antitrust and trade commission bills. His nomination to the Federal Trade Commission was rejected by the Senate, however, and for several years he sought public service work. L.D.B. helped to place him as an adviser to the government of Siam. See Letter to F.F. (Nov. 8, 1925), reprinted in V LETTERS, supra note 1, at 192-93; Letter to F.F. (Nov. 29, 1925), reprinted in V LETIERS, supra note 1, at 195-96. In the 1930s, President Roosevelt ap­ pointed him to the Federal Trade Commission. 231. See Letter to F.F. (Sept. 25, 1928) (located in the Frankfurter Mss.-HLS, supra note 76). 232. See Letter to F.F. (Feb. 11, 1928), reprinted in V LETTERS, supra note 1, at 322-23. 1298 Michigan Law Review [Vol. 78:1252

Elizabeth's wedding announcement."233 And two years later: "Eliz­ abeth and Paul [Raushenbush] will be ready for jobs in the fall. Let them know if you hear of anything promising. Their address is 4000 Pine St., Phila."234 Not all of Brandeis's supplementary requests, however, were so easily dispatched. In September, 1926, Frankfurter found this as­ signment in his mail: I should like to stimulate the U. of Louisville to strive to collect ... for the Railroad Library: (a) The com[mit]tee reports & reports of hearings in both House & Senate which led to the enactment of the Interstate Commerce Act. (b) The com[mit]tee reports & reports of such hearings which led to each amendment. (c) (If feasible) such com[mit]tee reports & reports of hearings on proposed amendments, not adopted. I suppose the Harvard Law School Library contains a large part of this material, or, in any event, that you have data which will cover a list of at least (a) and (b). Could you have made for me (in duplicate) a list of these documents to be striven for; - and also, have noted thereon the Kentuckians, if any, who were members of the House and the Senate Com[mit]tees on Interstate Commerce at the times of the several hear­ ings etc. ?235 Because Brandeis's parental concern for the system of Savings Bank Insurance he had devised for Massachusetts in 1906 continued after his appointment to the Court, Frankfurter did not escape re­ quests in this area either. Brandeis's former private secretary, Alice H. Grady, now controlled the system, and Brandeis regularly offered his advice on even the most minute details of the program. Frank­ furter was asked to send data to Miss Grady,236 to intercede with journalist friends to secure publicity for Savings Bank Insurance,237 to promote enthusiasm for the scheme among the Harvard faculty,238 and to encourage the Cambridge Savings Bank to open an insurance department.239 After Frankfurter began studying crime, first in Cleveland and then in Boston,240 Brandeis literally flooded him with suggestions for

233. Letter to F.F. (May 13, 1925), reprinred in V LETTERS, supra note 1, at 171-72. 234. Letter to F.F. (Jan. 10, 1927) (located in the Frankfurter Mss.-HLS, supra note 76). 235. Letter to F.F. (Sept. 21, 1926) (located in the Frankfurter Mss.-HLS, supra note 76). 236. See Letter to F.F. (July 14, 1928), reprinled in V LETTERS, supra note 1, at 348. 237. See Letter to F.F. (Feb. 9, 1928), reprinled in V LETTERS, supra note 1, at 321; Letter to F.F. (June 15, 1928), reprinled in V LETTERS, supra note 1, at 344-45. 238. See Letter to F.F. (Oct. 10, 1929), reprinled in V LETTERS, supra note 1, at 402. 239. See Letter to F.F. (Nov. 15, 1929), reprinled in V LETTERS, supra note 1, at 410-11, 240. See L. BAKER, supra note 19, at 109-12. August 1980) Brandeis and Frankfurter 1299

presenting and augmenting his findings. The suggestions ranged from one considering the philosophical underpinnings of such inves­ tigations,241 to another proposing that particular topics be included in the study,242 to a third, after the report had been completed (and .sent to Brandeis for his comments before publication), describing how to implement the findings without losing the enthusiasm and high resolve of the moment.243 Some of these random requests were vitally important, and none more so than those relating to Brandeis's work on the Supreme Court. Brandeis heartily subscribed to the time-honored tradition of secrecy regarding the work of the Court. He carefully instructed each of his law clerks "that whatever he sees, hears or infers is to remain confidential as to everyone, now & forever." 244 His old friend Norman Hapgood once complained that B'randeis "never talks to me about the important issues anymore."245 But if Brandeis ever bent this principle of silence about the High Court, it was in conversations with Felix Frankfurter. So confident was Brandeis of the Harvard professor's discretion and good judgment that he was sometimes willing to discuss actual cases the Court had decided, and even the personalities and philosophies of his brethren.246 Brandeis, for his part, used Frankfurter as a sounding board and, occasionally, as a critic of his judicial opinions. There is even evidence that Brandeis sometimes used Frankfurter as a research assistant while preparing to write a particular opinion. This was certainly true when the Justice wrote to Frankfurter: "Thanks for references to your articles. Are you able to give me the data as to our overruling ourselves in cases under the Commerce Clause?"247 Brandeis needed the references to support his impas-

241. See Letter to F.F. (Nov. 9, 1926), reprinted in V LETTERS, supra note 1, at 243-44. 242. See the following letters to F.F. (July 6, 1921), reprinted in V LETTERS, supra note 1, at 3; (July 2, 1926), reprinted in V LETTERS, supra note 1, at 227-28; (Aug. 24, 1927), reprinted in V LETTERS, supra note 1, at 300. 243. See Letter to F.F. (Sept. 29, 1921), reprinted in V LETTERS, supra note 1, at 17-18. 244. Letter to F.F. (Oct. 7, 1928), reprinted in V LETTERS, supra note 1, at 358-59. 245. Letter from Norman Hapgood to Franklin D. Roosevelt (undated) (located in the Roosevelt Library, Hyde Park, New York). 246. See, e.g., the following letters to F.F. (Dec. 6, 1920), reprinted in IV LETTERS, supra note 1, at 517; {Apr. 19, 1921), reprinted in IV LETTERS, supra note 1, at 550; (Mar. 6, 1925), reprinted in V LETTERS, supra note 1, at 167-68; (Mar. 14, 1926), reprinted in V LETTERS, supra note 1, at 209-10; (Feb. 26, 1927), reprinted in V LETTERS, supra note 1, at 272-73; (July 9, 1927), reprinted in V LETTERS, supra note 1, at 295-96; (Dec. 6, 1927), reprinted in V LETTERS, supra note 1, at 315-16; (Feb. 21, 1929), reprinted in V LETTERS, supra note 1, at 367-68. In addition, see a document entitled "Conversations Between Louis D. Brandeis and Felix Frankfurter'' (unpublished notes of conversations between L.D.B. and F.F., located in the Frankfurter Mss.-LC, supra note 35). 247. Letter to F.F. (Dec. 21, 1926), reprinted in V Letters, supra note 1, at 255. 1300 Michigan Law Review [Vol. 78:1252

sioned dissent in .Di Santo v. Pennsy/vania,248 where he wanted to uphold state police power even if it required overruling earlier com­ merce clause decisions. In support of his position, Brandeis cited an article co-authored by Frankfurter249 and nearly a dozen earlier in­ stances in which the Court overruled itself in that field. 250 Brandeis's willingness to tum to an outsider for help in the ex­ tremely sensitive area of drafting a judicial opinion reveals - if more evidence were needed - the intimate relationship which had grown up between the two men, and the extent to which, under Brandeis's direction, they functioned as a team on behalf of the pres­ ervation and furtherance of American liberalism.

VIII By the time Franklin Roosevelt became President on March 4, 1933, subtle changes were appearing in the Brandeis-Frankfurter re­ lationship. Brandeis was seventy-six years old and fully cognizant of the need to conserve his strength. For almost a decade he had warned the Zionists that they could no longer rely upon him for day­ to-day advice and that while he might be willing to study Palestinian conditions during the summers, and to offer occasional advice on large policy matters, his age simply required him to retire from ac­ tive leadership.251 In the week of Roosevelt's election, Brandeis as­ sured his daughter, "I am as usual, but the auto men are right. Old machines are unreliable and the maintenance cost high."252 In addition, the return of the Brandeis-Mack faction to power in the Zionist movement in 1931, and the return of the Democrats to power in 1933, opened up to Brandeis even more direct channels for whatever suggestions and opinions he cared to offer. He communi­ cated directly to the officers of the American Zionist Organization, and they consulted him regularly. He knew virtually all of the chief New Dealers personally, and they all had resort to him with regular­ ity. Suddenly the corridors of power were bustling with men sympa­ thetic to Brandeis's purposes; his need to rely so heavily on a discreet and diplomatic go-between diminished. Frankfurter's location at

248. 273 U.S. 34, 37 (1927) (Brandeis, J., dissenting). The case was argued on October 27, 1926. The Court rendered its decision on January 3, 1927. 249. See 273 U.S. at 42 n.3 (citing Frankfurter & Landis, The Compact Clause ofthe Con• slilulion -A Study in Interstate Adjustment, 34 YALE L.J. 685 (1925)). 250. See 273 U.S. at 43 n.4. 251. See, e.g., Letter to Jacob deHaas (June 5, 1927), reprinted in V LETTERS, supra note I, at 291-92; Letter to F.F. (Sept. 23, 1929), reprinted in V LETTERS, supra note I, at 389-91. 252. Letter to Elizabeth B. Raushenbush (Nov. 2, 1932), reprinted in V LETTERS, supra note 1, at 513. August 1980] Brandeis and Frankfurter 1301

Harvard had become something of a liability - Brandeis himself was now placed much closer to progressive political and legal talent. ·For his own part, Frankfurter was doubtless glad to be freed from some of the responsibilities Brandeis had assigned to him over the years. At the time of Roosevelt's inauguration, after all, he was fifty-two years old. Through his monumental scholarship and coura­ geous reform work, he had earned his own reputation as a leading liberal strategist and sage. Even the most casual observer of Ameri­ can politics knew that Frankfurter enjoyed a close personal relation­ ship with the new president and that the New Deal was staffed by his former students. Frankfurter ''used" them in the same ways Bran­ deis had used him: ·each week the professor fired off dozens of notes and phone calls instructing, urging, encouraging, making his own suggestions and requests. Although the arrangement between Bran­ deis and Frankfurter continued after 1933, the changes had already begun. Students of judicial ethics and of extrajudicial behavior will certainly find in this relationship some troubling philosophical problems. After all, Frankfurter argued cases before the Supreme Court during these years, while regularly receiving money from one of its Justices- and that Brandeis disqualified himself from partici­ pating in these cases (for reasons other than Frankfurter's appear­ ances) is not entirely sufficient to avoid the obvious questions of propriety that are involved. The problem is especially curious, when one remembers that Brandeis was so terribly cognizant of the need to avoid entanglements that might impair his judicial impartiality. In 1916, Brandeis had consulted with Chief Justice White about his personal financial investments - he did not want to run the risk of having to disqualify himself because of a possible conflict of inter­ est. 253 Brandeis also took the unusual precaution of scrupulously re­ fusing honorary degrees from colleges and universities, lest the awarding institution someday appear as a litigant and his objectivity appear compromised.254 Yet it must have been clear to Brandeis that Felix Frankfurter dealt every day - and often at Brandeis's direct behest - with issues and causes and even with Congressional legislation that might easily arrive at the High Court for final adjudi­ cation. Whether his partnership with Frankfurter, his cash "invest-

253. See Letter to Chief Justice Edward D. White (June 29, 1916), reprinted in IV Letters, supra note l, at 241-42. 254. See, e.g., Letter to Charles E. Clark (Mar. 12, 1930), reprinted in V LETTERS, supra note I, at 421; Letter to Stephen S. Wise (Jan. 19, 1936), reprinted in V LETTERS, supra note l, at 563-64. 1302 Michigan Law Review [Vol. 78:12S2

ment" in him, constituted an "entanglement" which might impair judgment is not a question easily answered. In at least one instance the danger must have been brought home to Brandeis rather directly. In 1927 Frankfurter enlisted in the cause of the two condemned radicals, Sacco and Vanzetti. On June 2, Brandeis wrote to him: "I have realized that S[acco]. V[anzetti], in­ ter alia, must have made heavy demands for incidental expense, as well as time, & meant to ask you when we meet [sic] whether an additional sum [of money] might not be appropriate this year. Let me know."255 On August 15, Brandeis did deposit an additional $500 into Frankfurter's account.256 Six days later, only hours before the two men were executed, their desperate lawyers journeyed to Cape Cod to beg Brandeis to issue a stay. The Justice felt unable even to hear their arguments, and declined to admit the visitors into his cottage. 257 There is no evidence that Brandeis, despite his normal sensitivity to the requirements of judicial propriety, was much troubled by the questions raised by his relationship with Frankfurter. In part this freedom from moral doubt was reinforced by the intimacy of the two men. Brandeis once referred to Frankfurter as "half brother, half son,"258 and he probably regarded his payments to Frankfurter in the same way as those he regularly made to less affluent members of his family. Certainly Brandeis never regarded Frankfurter as a mere "employee," nor could he objectively do so. Brandeis never asked the professor to undertake projects or to act on suggestions that did not command Frankfurter's independent approval and allegiance. Frankfurter also embarked on reform activities on his own initiative: the crime surveys in Cleveland and Boston,259 the work on behalf of Tom Mooney260 and Sacco and Vanzetti 261 all were begun without

25S. Letter to F.F. (June 2, 1927), reprinted in V LETTERS, supra note I, at 290. 2S6. See Letter to F.F. (Aug. IS, 1927) (located in the Frankfurter Mss.-HLS, supra note 76). 2S1. See N.Y. Times, Aug. 22, 1927, at I, col. 8. L.D.B. was tied to the defense in the Sacco-Vanzetti case by other bonds. His wife and a daughter were active on the two con­ demned men's behalf, and so was the family's intimate friend and frequent houseguest, Eliza­ beth Glendower Evans. L.D.B. probably would have felt constrained to disqualify himself from talcing any part in the case even without his tie to F.F. 2S8. Letter to F.F. (Sept. 24, 192S), reprinted in V LETTERS, supra note I, at 187-88. 2S9. See text at notes 240-43 supra. 260. It was President Wilson who first turned F.F.'s attention to the Mooney case. Mooney had been convicted and sentenced to death in California for the murder of numerous people who died when a bomb exploded at a Preparedness Parade in San Francisco on July 22, 1916. After Mooney had been sentenced, it was established that his conviction rested on perjured testimony. Mooney was not released until 1939. See FRANKFURTER REMINISCES, supra note 19, at 130. 261. See text at notes 25S-S7 supra. Mrs. Elizabeth Glendower Evans first alerted F.F. to the Sacco-Vanzetti matter. See FRANKFURTER REMINISCES, supra note 19, at 209-10. August 1980) Brandeis and Frankfurter 1303

prompting from the Justice. In no sense, therefore, could Brandeis think of Frankfurter as being "on a salary," taking money in ex­ change for the unquestioning performance of assigned duties. And if Brandeis was untroubled about the arrangement because of strong ties of friendship, probably he was also relieved from doubt because of the nature of Frankfurter's work. To Brandeis, the reform efforts that Frankfurter undertook seemed so obviously in the public interest that it was a matter of clear social importance that the work be continued, guided, and facilitated. No shred of evidence survives to suggest that Brandeis ever asked Frankfurter to perform tasks intended to enhance Brandeis's personal reputation, increase his financial holdings, or discredit some personal opponent. This no­ bility of purpose - as Brandeis perceived it - must have gone a long way toward quieting any nagging doubts about the propriety of the arrangement. Whatever verdict is rendered on the matter of judicial propriety, one conclusion remains clear: for sixteen years, in an environment of social and political conservatism, Louis D. Brandeis and Felix Frankfurter had combined their efforts to further a wide range of traditional, progressive causes. Much of what they attempted, of course, ended in disappointment; failure was preordained in the at­ mosphere of war and "normalcy" in which they functioned. The surprising thing, however, is not that they did not always achieve their purposes, but that two individuals were able to accomplish so much. Historians are only beginning to explore the links between the progressive impulse of the first years of the century and the flowering of reform in the 1930s.262 It should be clear, however, that Brandeis and Frankfurter played a substantial role in preserving the spirit of American liberalism during the intervening years. When Brandeis died in October, 1941,'the Harvard Law Review decided to dedicate a special issue to his memory. Felix Frankfurter, then an Associate Justice of the Supreme Court himself, prepared a short memorial to introduce it.263 In general, Frankfurter struck the appropriate note, and he struck it in typically moving and eloquent language: "Our present task," he wrote, "is to fortify ourselves by

262. See 0. GRAHAM, AN ENCORE FOR REFORM 4-23 (1967); Glad, Progressive and the Business Culture ofthe 1920s, 53 J. AM. HIST. 75 (1966); Link, supra note 122, at 844-47, 850; Maxwell, The Progressive Bridge: Reform Sentiment in the United States Between the New Free­ dom and the New Deal, 63 IND. MAGAZINE HIST. 83 (1967); McCraw, The Progressive Legacy, in PROGRESSIVE ERA 181 (L. Gould ed. 1974). 263. See Frankfurter, Mr. Justice Brandeis, 55 HARV. L. REv. 181 (1941). 1304 Michigan Law Review [Vol. 78:1252 his example, by his passionate dedication of great gifts to great purposes, by his use of the versatile resources of law for the libera­ tion and enrichment of the potentialities of man."264 Frankfurter recalled the hallmarks of Brandeis's work: the painstaking thought, the meticulous care and investigation, the consistent engagement with the complexity of society. He opened his final paragraph, how­ ever, with a remarkable assertion: "A man so immersed in affairs as Louis D. Brandeis must have closed the door on many of his inter­ ests when he went on the bench. But one is tempted to believe that judicial office was most fitting for his nature."265 The statement en­ compasses a world of irony. No one knew better than the writer himself how few were the interests that Brandeis abandoned after 1916. And no one had done more to reconcile for Justice Brandeis the conflicting demands of his private nature and his judicial office.

264. Id 265. Id at 183.